Defective Lease - help!

Hwaauxl_oleaiba · 21 October at 10:17AM

Hello. Need advice if anyone has any ideas!

I am in the process of selling my first floor flat (maisonette) in which I am the leaseholder and have a share of the freehold. We seem to be having a problem with the sale due to the lease for the flat, as it does not specifically state that the loft is demised to the upper floor flat.

My solicitor is advising it doesnt need to be specifically stated due to the scheme for maisonettes clarifying both demised properties (e.g. downstairs flat is ceiling of theirs downwards and upstairs flat is our floor upwards).

The first buyer's solicitor requested a deed of variation to confirm in the lease that the loft was demised to the upper floor flat. My co freeholders are extremely un-cooperative and refused to even have a conversation about this issue stating that 'it wasnt needed when you bought so why is it needed now'. (I originally purchased in 2020). I offered to pay for their legal advice before they signed, but they have flat out refused any further conversations on this topic. My first buyer therefore pulled out of the sale 5 months after their original offer.

My second buyer's solicitor is now requesting the same - a deed of variation. I still assume this is a no-go due to the co-freeholder's refusal for even a conversation about the issue.

I am unsure where to go from here as the flat is starting to feel unsellable due to this loft issue. Has anyone had anything similar or can offer any advice?

I have lost a considerable amount of money due to this issue, and it now looks as though I may lose out on my ongoing purchase because the flat sale is taking too long.

loubel · 21 October at 10:29AM

So your solicitor says that the loft is demised but two sets of solicitors acting for buyers have said it does not? Unless you are advertising the flat as including the loft storage I'm not sure why they are even asking about the loft?

eddddy · 21 October at 10:34AM

The issue seems to be whether the loft is included with your flat.

i.e. is the buyer buying a first floor flat plus loft, or is the buyer buying a first floor flat with no loft?

Either way that shouldn't make the flat unsaleable - but the flat might not be of interest to a buyer who wants a loft (perhaps because they want to convert the loft into another bedroom etc).

If the loft isn't part of your flat, then it would belong jointly to the co-freeholders. If that's the case, the loft is valuable, and they won't want to give it to you 'for free', by simply signing a deed of variation.

The co-freeholders would probably expect you to buy the loft from them - for a chunk of money.

So you could probably get around the problem my marketing the property as a first floor flat with no loft. But that might mean a price adjustment.