Advice on who owns responsibility on shared freehold roof terrace

chocolateadidct

We own top floor flat of converted Victorian House. Ground floor has garden, and extension over which middle floor has added a roof terrace. Roof terrace does not have planning permission. Ground floor has leak from roof terrace into their kitchen. They wish to replace the roof. Middle flat insist top floor pay one third despite top floor not having access, and ground floor extension not part of the main house. Middle flat now wants to consult solicitor as we refuse to pay one third. Ground floor willing to pay half with middle flat. Middle flat adamant that top floor pays a third.

Any advice?

subjecttocontract

Well I'm no expert at anything but the way I see it is....if the roof terrace is a later addition & has no permission it follows that it has no building control sign off. So why should any of the other owners have any responsibility for repairs to it ?

flaneurs_lobster

Say no roof terrace ever installed. Extension roof has leak, who pays for new roof?

Only effect is to G floor, so only G floor? Only G floor has "enjoyment" of the roof.

M floor offering to pay is tacit agreement that terrace MAY have been a cause of leak.

Unless the lease has specific mention of the extension roof (which they normally do about main building roofs) then can't see how T flat can be expected to contribute anything.

eddddy

I assume that there are 3 leaseholders (i.e. 3 flat owners)

It sounds like you might be joint freeholders as well (what estate agents call 'Share of Freehold') - is that correct?

Your lease will specify what you are required to pay towards (or if it doesn't, it's a defective lease).

Leases vary, but a typical example might be like this:

• Each leaseholder is required to maintain and repair all parts of the building that are demised to them (in simpler terms, you are required to maintain and repair your flat.)

• The freeholder is required to maintain and repair the communal parts (e.g. the shared entrance hall), and the structure of the building (e.g. the foundations, roof, and external walls). And the freeholder can charge each leaseholder 33.3% of the cost.

But that only applies to the building as it existed when the lease was originally granted. Was the roof terrace there when the lease was granted, or was it created later?

You are not required to pay towards any part of the building which didn't exist when the lease was granted - unless there has been a lease variation (i.e. the lease has been changed) to say that you must pay.

(Things like who has access to the roof terrace and/or who has enjoyment of the roof terrace makes no difference to this.)

chocolateadidct said

Roof terrace does not have planning permission.

The more important question is… Did the freeholder give consent for a roof terrace?

Creating a roof terrace would almost always need consent from the freeholder. If no consent was granted, the flat owner who created the roof terrace is likely to be breaching their lease.

Edit to add…

Is it a properly constructed roof terrace, or is it just a flat roof which somebody is using as a roof terrace?

Flat roofs are not designed to be walked on repeatedly - they cannot take the weight. If people repeatedly walk on a flat roof it is likely to get damaged and start leaking.

Could that be what's happened in your case?

WIAWSNB

Ground floor is willing to go halves with middle floor? That's no surprise, as it's almost certainly their sole responsibility, unless it was designed to take a terrace at the time. Quids in. But, their position is also reasonable, and should almost certainly be the correct outcome, since the M flat is benefitting hugely from its use. No contribution from M should mean no terrace. (Depending on how these decisions were made at the time and how ratified.)

But middle flat wants you to contribute a third? Wow. This person needs treating with care. It doesn't matter whether they are merely misguided or are opportunist, you need to be careful with them. But, the first Q to ask them is, 'where in the lease it says what they claim?', and take it from there.

The leases will almost certainly be as Eddddy has outlined. It is implausible (tho' I guess not impossible) that the Freeholder at the time modified or added to this lease to include responsibility for this extension being shared between the whole building. Whether it included the M flat due to an agreed terrace is currently unknown - I guess that will depend on what was agreed at the time it was built. Or it's even possible that, when M flat asked to install the terrace, a separate agreement regarding the roof was drawn up between them.

But, if all they can produce is the original flat's leases, and chances are it will be, then M flat's solicitor should disabuse them of their beliefs.

If they won't listen to you, then just let them get their legal advice and come back to you.

Q - who is the Freeholder? If independent of you three, that is likely to be easier to handle - it won't become 'personal'. If the FH is shared between you, then assuming all there exists are the three leases which do not suggest this flat roof is a shared responsibility, then all you should need to do is persuade one other of the flats of this fact - ie, G flat. That should nip it, but 'legal' is always an option - I'd let the M flat pursue this, and then you respond if really needed, and you should be able to claim costs from them as their claim is clearly bonkers. Ie, don't you bother getting legal advice in advance - unless it's free.

Q - you have your own contents insurance? Do you have Legal Protection added to it? If not, I suggest doing so for the future as you do not appear to have rational fellow Lease/FreeHolders.

(It is usually considered desirable for leaseholders to also share the Freehold - each being a 'director' of the FH Co. with a vote. But...

I bought the FH for my first flat along with the other three. All educated professionals - as a mere newly-qualified teacher, I was the least 'successful'. My gawd, the 'logic' applied by some of the others was jaw dropping, and it was compounded by others not wishing to be rude. The newly converted basement flat went on to fit a patio area outside their individual side entrance, and they brought up at the next meeting how vulnerable they felt when sitting outside as the Edwardian house had old tiles, and one would occasionally slip; "Could we fit a guard along that side of the roof to catch any tiles? And would we all pay for it?" The other two shuffled uncomfortably, but made noises to agree, so I had to point out the patent unfairness, and that we all carried the risk of a split head whenever we left via the front door, but had no intention to fit guards there. I, as the poorest, also had to suggest we all made monthly maintenance contributions, pointing out that some large bills were inevitable over the next decade. And then, when the basement flat folk decided to sell up and leave a few years later, they asked if they could take their contribution with them. The others agreed - I had to gently point out how bonkers this was. Hey-ho.)

Choco, handle this with Qs;

"What does your lease say? Mine is very clear about shared responsibility for communal parts."

"Who does that extension belong to?"

"Could you explain why an extension for individual use only should have a shared responsibility?"

"If only one of us had a garage, should the others contribute to it?"

"Do you have any written permission to have access and a terrace on G-floor's extension? Could I have a look at what it says?" (Plant that seed.)

Failing this, just suggest she does speak to a solicitor, and hope that it costs her.