If you are thinking about adding value by expanding your flat into the loft space above then you will need to be careful that you obtain all the legal rights and consents you need from the freeholder (even if you have a share of freehold) before embarking on the expensive process of conversion.
Even forums purporting to provide legal advice sometimes appear to miss the pitfalls.
1. You do not own the loft.
Most leases do not include the loft space in the “demise” of the lease. This means you do not own it or have any rights to use it. This is often the fundamental problem.
Even if you use the loft space for storage you may or may not have a right to do so under the lease terms and in any event a right to use for storage does not lead you to ownership of this area even though you may be the only owner who physically has access to the space.
A landlord will normally be aware of the potential value of the loft space. There is no way of forcing him to sell. Sometimes it is worth considering purchasing the freehold with other tenants to obtain this space rather than negotiate terms with a difficult landlord.
2. You do not own the airspace around the roof space
Even if you own the loft space you may not own the area outside the structure of the building. This may be okay if you only require velux style windows for the conversion but if you want to build out e.g. by installing dormer windows or a balcony structure you will need to own this space also. Sometime this is implied by the lease terms but very much will turn on the exact wording.
The usual presumptions on this area are as follows:
- there is a legal presumption that the owner of land owns not only the surface of the land but also the airspace above and the subsoil below it. However this presumption applies more readily to freehold than to leasehold. This means your landlord’s freehold interest will included the subsoil and the airspace above meaning the landlord does have the ability to demise the subsoil and airspace to the tenants in the building;
- When considering the lease terms it is helpful to consider whether the drafting refers to horizontal or vertical divisions of the land. Where a property is demised vertically (for example a garage in a block of garages) it is more likely that the demise will be seen to be vertical and include the airspace and subsoil;
- However where the drafting refers to horizontal splits (for example, that the demise comprises the first and second floors of a building) there is a line of cases indicating that where the demise includes the roof, it is also likely to include some of the airspace above. However, those cases do not amount to a presumption that a tenant to whom a roof has been let always gets a demise of the airspace above it, particularly where there are multiple flats in the building. Therefore in a maisonette style lease which ownership and repair obligations are split through the line of the floor between the two flats then the implication will be stronger that the upper flat owns the airspace above the roof (although it does not follow that the lower flat includes the sub-soil beneath – see basement-developments-leasehold-flats-legal-pitfalls )
Many leases or deeds which purport to include the loft or roof space miss this point.
The problems is also one of certainty. On resale or remortgage a buyer or lender will not rely on case law to determine if you are correct unless the lease is very clear.
3. You do not have Landlord’s consent for the required structural changes.
Most leases will restrict changes to the flat. Often minor non structural changes are permitted with the landlord’s consent such consent not to be unreasonable withheld however structural changes (which would be required for a loft conversion) may be prohibited or only permitted with the landlord’s consent. The landlord may not have to be reasonable in deciding whether or not to grant that consent.
Sometime changes to pipes and wires running though the building will also require consent.
The landlord will have legitimate concerns that any changes to the building will not have an adverse effect on the remainder of the building although any such changes are likely to require building regulations approval and the council will oversee the works.
4. You may be interfering with other rights in the building
There may be services or other communal systems e.g. water tanks in the loft space. These may need to be relocated interfereing with the rights of other tenants.
You may want to erect scaffolding to enable the work to be carried out – specific rights should be provided for to enable you to carry out the work.
5. You will need to consider the repair obligations for the building in particular concerning the roof
The roof may be maintained at a communal cost. If you make changes to it the cost of repairing may increase because the roof structure is more expensive to repair. This is sometimes offset by the fact that the upper flat owner is completly replacing or refurbishing the roof and not passing on any of the cost to the other tenants/freeholder. Often we see situations where the tenant is offered the loft space for conversion where they take on this repair responsibility forever more. Each matter can turn on its own circumstances.
In addition you are changing the floor area of the flat – sometimes doubling it – you would need to consider whether the existing division of the service charge/insurance is correct, for example, in a building with two flats will the old 50:50 split turn into 1/3 : 2/3.
6. You assume that a share of freehold equates to consent – it does not.
Even where you own a share of the freehold the other co-owners are not bound to consent to such an arrangement. You still have to deal with the lease and obtain the necessary consents from your co-owners. Some times this can be trickier than dealing with a third party landlord (who can usually be motivated by a monetary payment). For your neighbour this may be a personal disruption to their privacy which may not be easy to compensate in monetary terms especially if the property is wrapped in scaffolding. Even if the lower flat(s) are let there may be issues with tenants and potential loss of rent. You may need to agree strict timetables and sweeten the deal with offers to carry out redecoration to common or external parts.
7. You assume that you can turn the loft space into another flat.
Most leases are specific above sub-division – there is usually an express prohibition on sub letting part or assigning part of the lease. Often there is a covenant to keep the flat as a single dwelling. This means that you will need to deal with the landlord to vary your lease (for which he does not need to be reasonable). If you carry out the sub-division without consent he may forfeit your lease.
If you are considering such work it is important you obtain correct advice on the terms of your lease and the agreements you need to seek to achieve your goal. We provide initial opinions on your lease terms from £350 plus VAT and lease variations and licences for alterations from £650 plus VAT. For further details contact Mark Sadler on 01708 757575 or email mbs@ker.co.uk for further assistance.
93 comments on “Loft Conversion Leasehold Flats – Legal Pitfalls”
I note your suggestion of the obligation of the maintenance/ insurance for two flats. What is the likely split for three flats where it has been 1/3 each? How is this calculated – floor area of each flat, increased value of each or other?
Floor area is usually accepted as a reasonable way to apportion service charge and insurance liabilities. The flat value has no real bearing.
I live in a first floor detached maisonette. I have the only access to the attic which I have converted into a hobby room. How much would the costs appx be to alter the deeds to specify loft is my domain if I’m willing to consider roof my responsibility too. The lease also has 140 yes left, but land registry wernt informed ten yrs ago when I purchased the maisonette with renewed lease. It is in my name at the registry, and they told me what forms to download , which I have. Also they said with a covering letter explaining my solicitor didn’t inform them it had been renewed by the vendors, they would accept the documents. I may need a hand filling them in correctly though.
Regards
Steve
You would need to obtain your solicitors old file because if the Land Registry do not have the correct records this may be a problem. Your existing solicitors should fix this problem without charge.
The roof space may belong to the Landlord so you may have to purchase this from him and he does not have to sell it to you. Even if the loft space is part of your flat demise then you may nee his consent to convert it (retrospectively). We would need to consider your lease to give you a more precise answer.
How would a boiler in the loftspace be viewed by the freeholder if found whilst surveying for a lease extension?My lease makes no reference to the loftspace. What is the worst that can happen if they take offence to it? Thanks!
He may attempt to charge you for using an area outside your demise or ask you to remove it. I have seen examples where landlords have attempted to charge tenants for adding new flues to their boilers which extend through the structural walls and out into the airspace surrounding the building! It depends therefore on how ‘tricky’ the Landlord is.
I own a first floor leasehold flat in a two storey Victorian house. I have recently bought the Freehold of the whole property. Would this entitle me to have sole use of the roof space (conversion) without the permission from the lessee downstairs.
You can grant the consent to the conversion of the loft space to yourself so effectively you do not need consent of the lessee downstairs for the work unless there is something specific in their lease (this would be very unusual).
However you may need their consent to erect scaffolding etc around the building to carry out the work if not reserved in their lease as a right for the landlord or the upper tenant (you). Sometimes this right is included in the lease but it may only apply to repairs not to alterations or additions. Further advice may be required on the lease terms.
You may also need to include the loft space into your lease demise (and you need to be careful to avoid any right of first refusal applying – this can be done by transferring to and from family members).
I live in an old terrace house split into two flats, I’m on the first floor. Rather than deal with the difficult LL i just asked to buy the FH. They have said they need something in writing from both leaseholders agreeing to the purchase but I cannot get hold of the downstairs neighbour. Can this notification be done under a Section 5 notice instead?
The Landlord can of course serve a section 5 notice (right of first refusal). This will set out the minimum price the landlord will sell the freehold for and enable the majority of the tenants (in the case of a block of 2 this needs to be both of you) to purchase the freehold before he sells elsewhere.
On the assumption the lower tenant does not respond the Landlord is free to sell you the freehold for the price set out in the notice in your sole name. Even if the lower tenant does respond to the notice, he cannot, without your co-operation, acquire the freehold this way. But beware in this case that the lower tenant doesn’t offer a higher bid to the landlord and buy it from under your nose!
Dear please leat me know what can I do? I bought my maisonette 3 years ago. The lease has 97 years left. The freeholder doesn’t want to give a permission to do a loft conversion. What can I do in this sytuation?
Thank you
You need to establish what you are asking the freeholder to do. Do you own the loft space? Your lease should make this clear. If not you need to acquire the space from the landlord. He may ask for a payment for this.
If you already own the space you need to check the lease to establish if the landlord’s consent is required to the works and whether he needs to be reasonable about considering your application for consent. Again the lease terms may be different from one flat to another so carefully check the lease.
If after all those steps have been taken you may still need to apply to Court for a declaration that the landlord is unreasonably withholding his consent. Clearly you need some professional advice.
My upstairs neighbors have approached me asking if I would consider buying the freehold with them. They also mentioned that they have a strong interest in developing into the loft space, and have proposed that the lease be amended so that they take sole responsibility for loft, maintenance costs included. Does this seem like a fair trade? What is your advice?
It can be a fair trade because if you do not purchase the freehold together the upper neighbour can of course do a deal with the landlord direct and you would still have an upper loft conversion. You will still be laibly to contribute to the roof costs in those circumstances.
However if values are high in your area there may be significant value in the loft space so you may need to consider the detail. You may be providing a way for the upper tenant to buy this space more cheaply than approaching the landlord.
Also make sure if your lease is short that you have agreement to extend the lease immediately on acquisition of the freehold.
If I am the sole freeholder and own the first floor flat and in the lease there is no mention about ownership of loft but only shared maintenance can the ground floor flat lessee prevent me from demising the loft and airspace to my lease?
If there are no specific rights in his lease to use the roof space then the short answer is no.
However depending on your circumstances you might need to comply with the right of first refusal rules in the Landlord and Tenant Act 1987 as amended by the Housing Act 1996 which can apply to any disposal made of common parts which usually includes the loft space.
You may be exempt under the ‘resident landlord’ exemption however this is quite limited. Both conditions below need to be satisfied:
1. the building is not a purpose-built block of flats e.g. a house which has been converted into flats since its original construction; and
2. you genuinely live in the building as you only or principal residence and you have done so for more than 12 months.
If you are not exempt there are other possible exemptions or ways around the act however basically it would be simpler to serve a notice as he/she cannot get the requisite majority to stop you from making the disposal. You just have to wait a couple of months before formally completing the variation to your lease.
Hi Mark. I am a leaseholder in a first floor flat, with a long lease. I have a sizeable loft which I have asked the freeholder (a not for profit housing association) to provide me with a quote to purchase the loft so that I can convert it to habitable space.
They have instructed a surveyor, who has used the following calculation to determine the premium: Future value of flat including loft space, less any associated costs, less the current value of the flat = premium for loft void. This would split the profit 50:50. I understand that there is no set in stone method, and this method is deemed to be appropriate by a lot of professionals in the industry.
My frustration is that the surveyor has clearly undervalued the current flat and used a very inflated figure for the future value of the flat (if looking at similar properties in the area) – which leaves an inflated figure to purchase the roof void.
Despite giving clear evidence of properties in the area, the surveyor has refused to amend their valuation and the freeholder has said that they will only listen to what their surveyor has quoted.
Is there anything I can do here?
thanks
Mike
The landlord is not obliged to sell to you. If you can purchase the freehold through the collective enfranchisement regime you may be able to use the process to force a negotiation of the development value as part of the overall calculation of the freehold value. You need to have a clear agreement with the lower flat owner about the reasons for the freehold purchase and ensure that you will be able to include the roof space in your demise and develop out post completion.
I own a top floor flat in a converted Victorian house, and together with the ground floor flat owner we both own the freehold to the property. I have lived there since 1995, use the loft for storage, and the only access to the loft space is via my flat.
I have checked the original lease (as far as I recall no new lease was drawn up when we became joint freeholders) and can see no mention of the loft being demised to me.
Can I argue that by virtue of the loft being used by me and having sole access to it that I it is somehow automatically demised to me?
If not, could my co-freeholder refuse to grant a change to the lease to allow the demise of the loft to be granted solely to me?
Hi
– Pls can anyone advise on ‘adverse possession’ chances in this situation
I am Leaseholder of a flat (1 of 3 in a period house)
– My lease term was recently extended back to 99 years. There were no change to the existing lease terms
– My flat is top floor and has sole and only access to the roof (4 storey property – no rear access)
– I installed stairs about 15 years ago to give me easy direct access to the loft and have boarded it out and have been using the loft as a work area. I did not install windows.
– My lease states nothing above the ceiling or below the floorboards is mine. Otherwise, there is no mention of the loft being used or not. The flat was constructed with a direct hatch opening and access to the loft from my flat.
Questions:
Do I have strong enough grounds for ‘adverse possession’?
2. Presumably, even if I was able to seek ownership this way, I would still need freeholder consent to convert the space as my lease requires freeholder approval (not to be unreasonably withheld)
3. The roof needs a full tile replacement at a considerable cost. (A Section 20 Notice served for roof tile replacement without roof inspection). Would it be unreasonable for the landlord to withhold consent to change the rear of the roof to a standard dormer (instead of sloped), if the dormer would cost less than the freeholders own very expensive quotes to replace the existing roof and and if I provide an opening skylight, it will provide future access to the roof for ongoing maintenance work, without the need to erect 4 storeys of scaffold (as we have to do now. for any roof & gutter repairs).
Hi There
I own a ground floor maisonette, neighbours above want to convert and build up into the loft. it won’t be a straight forward loft conversation and they are building up and extending the roof upwards. Part of my Demise is the foundations of the building and the internal and external walls and joists of my property. My question is can the freeholders give permission for this without my consent as the extension of this loft could have implications on my demise mainly the foundations?
Thank you.
Hi Mark, I am a leaseholder in a first floor flat. My flat is let to tenants. There is also a studio flat on the first floor and a flat with garden and access to a basement on the ground floor. My flat and the studio flat have both access to the loft area. All three leaseholders own a share of the freehold. The owner of the studio flat converted the loft shortly after purchasing the flat. They did not seek consent from the other freeholders and maintain they didn’t need planning permission as they have not made any structural changes but put in three Velux windows. The studio flat owner wants to sell but has encountered difficulties due to lack of planning permission etc. and is now asking the other freeholders to sign a Deed of Variation. It was our intention to enter into a Declaration of Trust regarding the freehold but we are uncertain as to the common areas; particularly the loft space. There is no mention of the loft space in the lease. What is your view? Thanks. Gertrud
It is not possible to answer this without seeing all three leases but the problems encountered by the neighbour on sale indicate the deeds are not clear.
It therefore depends on what you said or agreed at the time of the conversion. If you had access to the roof space was that blocked and did you not object?
It may be that you could ask for a payment for the variation to the lease but that depends on a lot of factors.
What is the value of the flat in question.
It is also difficult to see how velux installation did not involve an element of structural change as unless they are very small then the rafters of the roof are often cut. These are clearly structural. Further to properly install a staircase into and a new floor to a loft conversion there may be an element of cutting and or strengthening to the joists. Was there any building regulations for this work?
It may be appropriate for you to ask for your neighbour to cover your fees to consider the terms of his lease and the proposed variation. I would ask for an undertaking for those costs to be paid whether or not you agree to the variation.
Hi Mark,
I am a top flat leaseholder in a property of 5 flats. There are 2 other leaseholders (Flat 4 below and Flat 2 garden flat). The other 2 flats are still owned by the existing freeholder. There is also a loft space above which I am interested in acquiring and converting into some sort of habitable space. Note, my current lease does not include the loft space as ‘demised property’, but the freeholder has allowed me access to the space for storage.
Last month, the freeholder served each of the leaseholders (including myself) a notice (right of first refusal) with the intention of selling a share of freehold – which I am also interested in and am have started initial talks with the other 2 leaseholders.
How should I go about it and to whom should I speak first – the freeholder or the other leaseholders? In theory it sounds like a great opportunity to have a share of the freehold and also the loft. Can I make an offer to the F/H for the loft separately or is it better to buy it via share of freehold?
Thanks
It may be better to acquire the loft from the freeholder as you are only negotiating with one person not three. It could be difficult to get this through even if only one of your co-freeholders objected so I would rather deal with the freeholder alone. Clearly any agreement to sell the space should also include the consent to carry out the works.
Thanks Mark. How should I go about estimating how much to offer to the freeholder? I’ve reached out to many surveyors but noone is willing to carry out a valuation for the loft only. Thanks
There is no set method. Some landlords take a lump sum (£10,000 seems a popular figure for no apparent reason that I can see) or a percentage of the value released as a result of the development (for example added value to the flat less build costs x Y%). Y often being between 30 – 50%. Some councils use this.
Other valuations for this type of thing exist within collective enfranchisement valuation where the landlord claims this a a head of loss but that is usually heavily discounted because if the tenant has any sense at that point they have not even indicated they want to extend and have not obtained planning permission so there is a risk that planning may not be obtained.
I owned the lease hold Ida ground floor flat. The FH owner the top floor plus loft. 2 weeks a go he contacted me for money. He discovered the his loft extension was made using not the main walls as support but the front wall of the property.
My question is, I am responsible for the roof but why should I pay for a mistake on his property?
The lease would determine what you are required to pay but this is a service charge issue and not my area. You may however be required to fix inherent (hidden) defects in the building under most lease terms.
Hi,
I am looking to buy a first floor flat (leasehold) and that flat already has a loft conversion which the previous owner did (the owner before the one I’m buying from). Does this mean I am safe to use the loft conversion legally?
This should be part of the standard checks made by your conveyancing lawyer – does the conversion have planning permission (flats do not have permitted development rights like freehold houses), building regulations completion certificates, landlords consent and is the loft space within the demise of the flats?
Ok that makes sense. So if it does not have permission from the freeholder can usage be established without permission if has been being used for more say 10 years or would you still have get permission from the freeholder. If the freeholder does not give permission I you have to take any action since I did not convert the loft in the first place?
I am a freeholder of a GFF the upstairs FFF would like to buy the loft from us. How will I go about quoting them? And how much roughly is a loft worth? As they would gain an extra room from this adding value to their flat
There are various methods. There is no set way. It is just a question of trading – you can try and be scientific and share the “profit” from the extra space but others simply plump for a figure like £10,000. It is a strange negotiation because there is only one buyer for the space and if they don’t buy it you get nothing. There is no other market for it.
Hi Mark. I bought a top floor maisonette in a terrace converted into 3 flats. I am also the sole freeholder.
The original owner converted the loft many years ago in 1986 and I am unsure if i am solely responsible to repair the flat roof or if it is a shared cost.
The parts of the lease which show my demise regarding the roof states my demise is up to the” plastered coverings and plaster work of the ceilings up to the underside of the floor or roof joists(as the case might be) above the same and the surface of the floors including the whole of the floor boards and supporting joists…….the attic areas(if any) exclusively accessible from the flat……….but not including any part or parts of the building other than the loft basement and attic areas( if any) or any conduits expressly included in this demise lying above the said surfaces of the ceilings or below the said floor surface.
The downstairs owner believes that as the loft is demised to me then I am solely responsible for the roof repairs. What are your thoughts?
This is going to be in the detail of the leases. I cannot really comment without seeing all the leases to determine this as there is no specific rules.
Hi Mark,
I own the first floor flat in a converted Victorian house. We want to build into the loft and the freeholder has said as long as we submit plans and building regs they are happy for us to go ahead.
Do we need to have the changes reflected in the lease? Do we need a new lease for us and downstairs to show what we are responsible for or does the insurance etc. Stay the same. Do we need the deeds to be changed too?
I’m so worried we will do it and then find we have missed something legal which will mean it can’t stay!
Hello,
The lease demises the foundations and the roof void to the property. We want to buy the freehold of the terraced house but having read the Act 1967, we believe that the property might not be eligible. Could the surveyor of the freeholder argue that the roof belongs to the freeholder and as a result a material part lies above the property / we do not own the lease of the whole house? The lease is not clear as to who owns the roof but it is clear that the freeholder is responsible for the maintenance.
Also, the lease does not mention ‘ground rent’ at all!. Not nil , not peppercorn. Is this a normal practice and according to the definition of what a ‘lease’ is?
If you
Hi Mark, we live in a top floor leasehold flat in London within a period terrace and have the council as our freeholder. Earlier this year we were granted permission to add an additional floor above us on appeal however, since this time the council have refused to sell us the airspace above first citing the water tanks which currently sit within the loft space were not adequately re-sited within the architects drawings, and then deciding that this was an oversight on their part and they would look at the application again. We have since received an email from them saying that they would deny us the opportunity to buy the space and that they would not advise us appeal. We are somewhat confused and bemused as they have not given us a reason for this refusal and wonder what we can do now if anything!
There is little you can do if the landlord/freeholder (whether council or otherwise) refuses to sell you the space. Ex-right to buy leases tend to be in a standard format so they usually describe flat at bounded by the plaster walls and ceilings and floor coverings so there is not usually a very strong argument to say that the roof was included within the demises either.
Obviously you can ask the council to provide reasons for their decision but beyond that the only other way forward is to purchase the freehold with the other leaseholders in the building (with an agreement that you can purchase the loft space and redevelop as part of that process. Any rights the other leaseholders may have for communal facilities which may be in the roof void would need to be extinguished.
This process “Collective Enfranchisement” is currently being reviewed by the Government (as at August 2018) and announcements are expected in Autumn this year. The Government pledged to make lease extensions, enfranchisement etc easier cheaper and quicker or a phrase to that effect so it may be that the overall cost of the buying the freehold may drop in the coming months.
Hi Mark,
I am co free holder of a ground floor flat, the first floor flat want the loft space to be demised to them, as they and the previous owns have used the loft for storage, they would like me to sign the lease for demised of loft for storage only to safe guard the loft from being converted, I have never give them permission to store items on the loft space and when I move in nine year ago the loft was empty of items. Their solicitor has advise them to go to aggressive possession in a couple of years time.
, I understand they would need to make a claim, if there were successful in there claim over the loft space as they have double the size of floor do they pay more towards the cost of maintenance. I e current there is a spite of 50/50 as the there living area has increase would it be 2/3 and I would pay 1/3. The roof is jointly owned and I understand they cannot put in windows without my permission.
The first floor flat did approached me to demised the flat to them in exchange they would take full responsibilities for the roof, as they would like to build a loft conversation which I refused. I had to see a solicitor to gain access to the loft space to insure the loft had not been change, they have removed an two old water tanks from the loft space, My previous solicitor has advised me to include section 62 into the lease, to prevent them from again extra right to the loft, which the flat above refuse. I do not want the flat above to gain extra rights as it would increase the value of their property and my property has been devalue to do it your self work to the rendering of the out side of the building.
Jackie I cannot really comment on matter which both you and a neighbour have instructed your own lawyers. I would say however that “adverse” possession can be frustrated by consent. If the roof space is used for storage with your consent then the adverse possession would cease.
Hi Mark
I own a first floor victorian maisonette and have sole access to the loft (which the lease states is not mine). I know everyone along the row everyone else on the top floor uses their loft as storage space, and therefore I converted mine to a ‘storage room’ in accordance with building regs, and it has pull down stairs (I have been using it as a bedroom and I have put a velux in). This is nearing 10 years ago. Is there anything I can do to claim the space or would I have to return it to its original state before selling?
Many thanks
I would not sell this as a bedroom because of course you do not have ownership and the building regulations position is not clear. If used as storage only then a buyer maybe less concerned about a “bonus” room which may not have long term rights to use it. They may want a declaration from you to say you have used it for the last 10 years without concern from the Landlord but really there is no more you can do unless you properly want to regularise the position before you sell which could open up a can of worms.
Dear Mark
We own a top floor one bedroom purpose built flat (two stories high) which is share of freehold (1000 year lease via Resident Management Co) and we have owned it for 20 years. The loft space is huge and we have sole entry to this and we currently use it for storage but head height is an issue. Originally we had a water tank in the loft for the original gas boiler but as we now have a new condenser boiler this has been removed. However, cold water pipes run through our loft supplying the water to the two flats below, otherwise we do not think there are any other communal services in our loft. We would like to convert the loft into an office area with built in storage but we would probably need to raise the roof as it is not possible to stand upright in the loft. We have not had any surveys/quotations done yet as we are not sure if this would all be financially feasible but, as it is share of freehold, do we already own the air space above our flat and would we still have to get permission from the Resident Management Company and would we have to pay a premium to the RMC for something we already have sole use of and use it as our own? Your advice would be greatly appreciated. Thank you.
The fact that this is a share of freehold does not mean to say you own the roof or airspace above. The lease still determines the extent of your “demise” and therefore we need to look at the lease to work this out first. You can then approach the freehold company, depending on whether you own the loft space just to ask for consent to carry out the works, or if you do not own the space to see if they will transfer it to you and at what cost (and for consent to convert which would of course be implied by the fact you were acquiring it).
Thanks Mark. We will put the project on hold for the moment but will be in touch should we decide to proceed.
Hi Mark, a leasehold property I’m interested in has a bonus room in the loft, a converted small bedroom. There is a window in the roof and electrics in the room. I don’t think the owner followed the process to formalize the conversion. How problematic it is likely to be if I decide to buy it? Thank you in advance for the guidance.
There are a number of issues to consider.
If this is described as a “bonus room” (or storage space) then it is likely the current owner has not obtained consent for the works, either from the landlord or the local authority.
As you can see from the above article you may need to buy the space and/or obtain landlord’s consent to carry out or regulate these works.
However, further structural works may be required. The loft conversion should have building regulations approval and a completion certificate (as you would find if you are purchasing a loft conversion in a freehold house). This can be particularly significant in loft conversions because often the floor of the loft would need strengthening because it is unlikely it was designed to take the weight of a room above merely original the roof. I am no builder but if you strengthen the floor you may find that the floor height increases and thus the roof height of your room diminishes. It also means tearing up the current floor to see what it is sitting on. You also need building regulations for the electrics.
You will also need planning permission for the windows in the roof (even if “Velux” style) because there are no permitted development rights for flats.
There is a lot to think about.
hi Mark,
I am the freeholder of 2 pb flats.5 years ago the leaseholder of the upper flat asked if a payment would be required by me for him to convert the loft.I said no because the lease appeared to give him a 125 yr lease on everything upstairs inc the roof.
I have been abroad but was surprised to notice that in the intervening period he has gone ahead and got planning permission etc and converted the loft thus giving himself an extra 2 bedrooms.
he is now selling and the purchaser is asking me if i consented to the works( as the lease requires f/holder consent)
i didnt technically consent.i just said i wouldnt charge him.i dont want to be liable if anything goes wrong structurally in the future etc.there was obviously no part wall surveyor involved.
i would be very grateful for your thoughts
many Thanks Shaun Lyne
You may want to consider the lease of the upper flat before you grant consent because you may decide that the share payable for insurance and maintenance of the building may need to be adjusted.
You can also ask (as I suspect the buyer has asked for this also as part of the purchase process) for the planning permission and building regulations sign off for the works. This will give you some comfort that the works were completed in the right manner – even so most licences for alterations specifically exclude any liability by the landlord as to the suitability of the building for the changes. The tenant should pay for this to be regularised retrospectively.
hi Mark, we have a lease of almost 160 years, for a first and second floor (loft extension) flat, which is part of a Victorian house. There is a ground floor flat with only a 60 year less. The freeholders are absent, and have never collected service or maintained the building, for over 30 years, but did respond to the previous leaseholder if our flat to pay to extend the lease. We now wish to build a pod extension, (and have sought planning permission). we need consent from the freeholder, is it worthwhile to try and buy the entite freehold: share if freehold for just our bit it just offer money to obtain consent?
Dear Mark,
I own a leasehold top floor flat with loft space above (not in my demise). I am currently in discussion with the rest of the leaseholders to acquire the freehold via collective enfranchisement. In the past, the F/H allowed me to use the loft space for storage, however I never used it as its dusty and undeveloped. Now, via collective enfranchisement, I think there is an opportunity for me to acquire the loft space and make it at least inhabitable. Currently 4 of us 5 flats are proceeding (min % required), however the last remaining flat could also be brought in.
I would like to have exclusive and sole access to the loft space as I think this (along with a share of freehold) would increase the value of my property when I sell. And I wonder how I should go about incentivizing the other leaseholders to not object to me having sole access to the loft space along with consent to develop it. I have no imminent desire to fully convert or develop the loft in the near future, as I’m more interested in selling in a couple of years.
Specifically, I thought about offering to take sole responsibility of roof repairs. If so, should I first get it surveyed? I assume my lease would need to be altered to incorporate the new demise of the loft space. Does there need to be a legal agreement between the leaseholders around these matters?
Thanks,
Sehar
If you don’t have any immediate plans to carry out any works then I would not (unless the value is significant) take over the responsibility to repair at this stage although you could make it conditional upon you carrying out the conversion works.
It would be possible to include a line in the Participation Agreement to confirm that in addition to you all getting a lease extension at the end of the Collective Enfranchisement process (which is I assume the primary aim of purchasing the freehold) that you will also be granted ownership of the loft space. This will be stage one of the legal agreement and essentially be binding on the current owners but you need to ensure that this is carried through to stage two which will be a formal variation to your lease. This is because owners sell / move on and the Participation Agreement you had with them before you purchased the freehold will be no use in the medium/long term as it will not necessarily bind future owners of the flats/share of freehold.
Also, forgot to mention, the property is in a conservation area. So there is a risk that full planning permission may never be obtained.
Our flat was built 40 years ago and the original owner built a large bedroom and en-suit in the loft space. The flat has changed hands many times since. My neighbor has now filed a building application for a flue through the loft space and I discovered that only part of our existing bedroom is actually marked out in the plan. The en-suit and the eaves spaces do not seem to be contained. Can I be required to surrender the space?
It is difficult to tell if there is a problem here because the plan may not be conclusive as to the extent of the demise. You need to look carefully at the written description. This is sometimes quite detailed (often in the first schedule of the lease) but in some cases to make sense of the description of the flat you also need to look at the repair obligation for both the landlord and the tenant in the lease. Plans of lofts can also be difficult to interpret because often the “red line” is drawn around the living space as designed by the architect but excludes the eaves storage for example.
In any case the lease needs to be considered carefully and as a whole (text and plan).
It is also not clear what you mean by original owner – do you mean the owner of the freehold or the original owner of the flat. In the later case there should be a consent to carry out the works somewhere in the papers even if the area falls within the demise.
I do not know what you mean by neighbour and how he can file an application for a flue – with whom? There is a lot to review and more information to gather.To consider this fully you would need to instruct me formally.
Hi Mark, Thank you for your very helpful reply above.
I’m wondering, what is normally the splitting method of the cost of freehold between flats in a Collective Enfranchisement? We had a valuation done by an external third party specialist and they based it on some formula which is heavily favourable towards the flat paying the lowest ground rent.
Is there any other commercially accepted and widely used method (perhaps on the purchase price of the flats or the number of bedrooms?) that could be more “fair”? Because the studio flat is objecting and saying it should pay less. I thought the share of freehold would mean an equal split.
Thanks,
Sehar
Hi Mark,
Sorry, please disregard my above query. It seems that instead of disagreeing between the cost of share of freehold per flat, the debate is now around the split of the service charges apportioned. Th split of service charge would be based on the size of the individual flats compared to the combined total size of all flats together. I think this sounds reasonable, although there has been no mention of the loft space. Does this sound reasonable to you? The cost of share of freehold per flat still remains as per a formula driven by ground rent, lease length etc.
Thanks so very much,
S
It is common for the service charges to be divided by reference to floor area so this is a reasonable way of determining the issue.
Thanks Mark.
The ground floor flat are concerned about invasion of their privacy and disturbance of peace (when the loft space above is developed), i.e. due to scaffolding, builders etc. Hence they are proposing that the option of loft conversion for my flat should be subject to freehold agreement.
Whilst I am mindful of the impact a full development would have on the people and tenants living in the building, I also don’t like being entirely at the mercy of the other flat owners (as I wouldn’t want consent to be unreasonably withheld) – especially if I was to try to sell the flat with the loft.
I think we all would act in good faith (as in I would give the other flat owners enough notice before carrying out works and hopefully no one will object), but how can I go about negotiating a better legal position for myself around this? What does full consent to develop the loft mean and what would it be subject to?
Many thanks in advance, Sehar
Hi Mark
We are looking to buy a first floor maisonette flat with a converted loft but I am not clear if the loft is in the demise or not. The lease describes the demise of the flat as the first floor flat and roof over the flat but doesn’t explicitly mention the loft space. Freeholder consent is not an issue as there is a deed of licence from the freeholder for the works. Would the loft space automatically be in the demise of the flat because the first floor and roof are included or should the loft be specifically mentioned in the lease in order to be within the demise? Thanks
If it contains the roof it is implied that the area below is included. The licence helps to confirm this.
Hi Mark,
I am considering buying a top floor flat (there are only two flats in this conversion of an Edwardian terraced house). The demise is described as “ALL THAT the upper floor of the property known as **** aforesaid including the roof, external walls and windows thereof.
No mention of the loft space.
Both flats jointly responsible for maintenance of the roof.
Seems to me doubtful that the loft space is included in the demise merely by mention of the roof being included in the demise, but I’d de grateful for your initial view.
Many thanks,
Helen
It does sound like the loft space is included because you have the roof within your demise and hence probably everything below it i.e. the roof space. Obviously I would need to see the whole lease to provide a definitive answer.
Hi Mark. I own a flat in a block of 8. It is one of 3 on the top floor. I have recently received a letter from one of the other top floor flat owners saying he has purchased the freehold. The roof space is huge and I have a loft hatch into it (I’ve not checked if the loft is sub-divided). Does the other flat owner now own the roof space? I’m concerned he intends to convert it. Thanks
Hi Mark,
If your lease states that you own the walls and roof as part of the top floor maisonnette.
And the head lease includes a reservation of a right by the landlord for the landlord to maintain a watertank in the loft space.
The landlord would not have had to reserve a right to retain the tank in the loft space if he owned the space.
Is this “reservation” evidence that the loft space was “demised” ie included in the property?
Yes it is evidence of that but you would need to be careful in reading the whole lease to put things into context (and the lease of the lower maisonette).
Hi Mark,
We were about to buy a flat with the intention of converting the loft. The seller was always under the impression that the loft was included. The Lease clearly states that the upper flat owns the roof of the building, but doesn’t mention the loft space.
The freeholder lives downstairs and obviously thinks that the loft isn’t demised. Apart from getting involved in a legal dispute, what are my options? I can’t buy the freehold.
Ask the seller to sort this out as a condition of the purchase. Even if the legal position is clear it does not stop landlords from taking a perverse position and as you say this can easily lead to a neighbour dispute.
Hi Mark
I have had an offer accepted on a LH FF flat with a loft. I have not seen the lease so do not know if it will be demised to me. If it isn’t would you recommend I pursue that with the freeholder now during purchasing negotiations (as well as trying to obtain freehold) or deal with it separately down the line? I will be purchase the property anyway. Thanks
I think you may have answered your own question if you are buying it anyway why put a barrier in the way?
Hi Mark,
I live in a converted Victorian semi.
There are two flats ground floor (mine) and upper flat. My neighbour asked me to pay half for a new roof as she said it was leaking and beyond repair. I paid half and the roof is complete but am now questioning if this was at all my responsibility. On the title deeds it states for my flat ‘ NOTE: As to the part tinted blue on the title plan only the ground floor is included in the registration.’ And for the upper flat ‘NOTE: As to the part tinted blue on the title plan only the upper flat, the roof space and the roof are included in the title’. In my lease there is no mention of responsibility of roof repair either. Could I have just forked out a lot of money for nothing? Thanks
This is a question for the conveyancer who dealt with the purchase and reviewed the lease for you. The obligation to contribute will be in the lease but this is not always in all leases.
Hi Mark
I have a leasehold flat and would like to extend into the loft. I have approached the landlord who is willing in principle to negotiate a fee for amending my lease but he believes he is legally obliged to (a) offer all the other leaseholders the opportunity to buy (or make a bid for) the loft space and (b) get their explicit consent to varying my lease to include the loft space. Is he correct about this? (He concedes that (a) is probably a formality given that only my flat has access to the loft space). Many thanks.
This can be the approach if the loft space is sold separately on a new lease just of the loft space.
There is however an exemption from the right of first refusal which is the obvious one – this is the grant of single tenancies: the landlord is free to grant tenancies of individual flats. So if the existing lease of your flat is surrendered and a new lease of your flat is granted with the loft space included then it would seem you can avoid the right of first refusal.
Hi Mark, block of 32 flats + penthouse. There is a private individual Freeholder (who is also lessee of one flat) – a head lease held by a block management co. – each flat and penthouse are held under sub-leases from BMC. The BMC retains the roof and walls etc. under their head lease. A developer has acquired lease of penthouse. Does developer need consent of first, head lessee (BMC) then, freeholder. Or is it likely that freeholder retained roof and walls under head lease so only his consent is required for development?
Hello
I am buying a leasehold 2nd story flat. It has been assumed that the loft space partitioned off and only able to be accessed through the flat is part of the demise. It has not been included as common area in the lease or as part of the demise. Someone must own it and have responsibility? There is more evidence to support the assumption that it should be stated as included in the demise (architecturally, specific and only access from the flat, history of use and other flats in the same same situation with specific loft space accessed only through their flats. The management agents say it ‘appears not to be part of the demise’ and will not commit further at this stage. I would like advise on how this can be contested as the loft is a useful asset with some value. Thanks
The layout of the property is not really relevant – the lease terms need to be reviewed carefully to see if the loft area is included within the demise.
What an amazing page! And thank you Mark Sadler!
I have learned so much just by reading through these posts!
My son is just in the midst of buying a top floor flat in a very old block of 3 floors. There were 2 flats on each floor but the top two flats were converted into one flat many years ago and the front door to the top floor flat is positioned on the half landing on the top flight of stairs.
The loft hatch would originally have been in the staircase hallway but it is now within the top flat since the historical conversion.
My son would own the freehold together with the other owners when he buys.
The lease says the other owners have a right of access to the roof via the loft hatch for necessary repairs.
He was hoping to convert the loft if the sale goes ahead, so does this mean he can’t do this or does this just mean that he will simply need to provide access to the inside of the roof in the event of any necessary repairs?
Should we be asking for clarification re ownership of the loft as part of the legal work please?
Thanks in advance for your very much appreciated help! 😊
As I have said you need to establish that the loft space, roof and airspace above is part of the demise of the flat. You then need to consider (as you have done in part) whether the lower tenant has right to use the loft space and for that you need to look not just at the rights “reserved” for the landlord and other flats in the upper flat lease but also the lease of the lower flat to see what rights were granted. You also need to consider the restrictions on alterations provisions in the lease. Because of the difficulties of getting consent from neighbouring owners who you share the freehold with you at least need to sound them out because they may have a number of legitimate concerns about major changes to the building and the disruption this may cause. This is high risk and if you are buying only if you can extend you would be well advised to get something agreed formally with the other owners prior to exchange.
Hi, I’ve (against legal advice) bought a first floor flat where the loft is not demised to me in the lease. The previous owners have converted the loft into a bedroom without permission of the freeholder as he/she is an absent landlord. I now wish to formalise the addition and get the title deeds corrected as neither lease or deeds reflect the loft room. How can I do this in the absence of a freeholder to negotiate with? I think cos the court? But is this expensive? There’s been no objections by anyone over the last 20 years since it was done but if I want to resell then I’m told the flat is not mortgage able ( I was a cash buyer). Any advice appreciated please.
You can purchase the freehold if you can get co-operation from the other leaseholders (you need 50% or more) and regularise the position once the freehold is purchased. Provided the landlord is absent it is unlikely the price determined will pick up on the development value.
Thank you so much for taking the time to reply so fully Mark – it’s much very appreciated.
I thought I would leave an update for you and for anyone following the thread?
The solicitor has confirmed to us in writing that the loft space belongs to the top flat (the one we are looking at buying) and that the only provision for other flat owners in the block is to allow access into the loft if needed for maintenance of the roof etc.
The other owners are keen to get a long standing damp ingress problem addressed in the top flat, (which we are getting a damp specialist survey on this week). The top floor flat spans the whole floor of the top floor so pays 2/6ths contribution to any essential building work, so this will certainly help not having to pay the whole bill for this.
I am thinking that once I have the survey and can share it with the other owners it will perhaps also give me an opening to then discuss their thoughts prior to me purchasing, on me converting the loft too 😊
Hi Mark
My daughter has bought a leasehold first floor flat in a converted end of tressed house which include the second floor or loft space which clearly marked red on deed’s attached plan, as already there is a room for storage etc.. with a Velux roof window and sliding access ladder, and she wants to get permission from the landlord whom owns the downstairs flat in order to convert the existing loft room properly subject to local council and building regulations, the landlord has just bought the garden flat including the freehold on his own, as he rejected to share the freehold with her despite confirming her interest to share with the new owner while he was purchasing it, my question is that can he really refuse a permit to my daughter and on what ground, because in the deed clearly states that the landlord ca not withhold permission without a good reason.
As I mention this is a tricky area and consent is not always easy to obtain even if you believe you own the space.
Hi Mark, when i bought my first floor flat in 1988, the freeholder stipulated that i should be totally responsible for the roof, which was in s state of disrepair. so my lease states that the ceiling roof space and roof are demised to me. Does the loft and loft space belong to me?
The lease needs careful review. It is possible that a repair obligation can fall upon you for land outside your ownership or demise but often they go hand in hand (ownership and obligation to repair) so there is a good chance of you owning this area but again careful review of the lease is required.
Hello, I am an underlease holder. I am also the director of the RTM company for the building. Last year, the headlease holder, who owned the lease for the roof space built a flat on top of my flat, with permission from the freeholder. The headlease holder is claiming that it is the responsibility of the RTM to pay for a surveyor to calculate the reapportionment of the service charge. Potentially writing a new lease for the new flat too. I disagree, as they did not need our permission to build the flat and we do not make any financial gain from it. I believe this is part of the development of the flat, and as such is their responsibility. Are you able to offer any advice?
The terms of the lease will be key to determine who will be responsible for this function and whether this passes to the RTM company so I would not be able to comment without sight of the leases.
I own a top floor flat in a converted house, with 2 flats on the ground floor. We are each 1/3 owners of the freehold and have a management company that we all run as directors. We all get along well and the top floor flat has had planning permission to convert the loft twice in it’s 18 year history since the house was converted to flats. However, I noticed in the lease that the top floor flat doesn’t actually own the loft space. I said to the other owners – none of us have tennants – would they mind if I converted the loft space to extend my flat in exchange I would take on 100% of the responsibility of maintaining / repairing and replacing the roof above the the top floor flat, which is currently only 50% my responsibility as per the lease. They agreed to this change.
So my question is, in the event that we all get along well as co-owners of the freehold, and I have verbal consent to make this change, what is the cheapest and most straightforward way to make my flat legally responsible for the roof and legally able to convert the loft? For example, would a letter written and signed by all the directors of the freehold, be enough to overwrite what is written in the lease?
I spoke to one solicitor and they were quoting me thousands of pounds to provide me with legal advice, and to represent my mortgage lender, and advising the freehold company had to be represented with an independent director and they had to have their own legal advice, and that the entire lease would have be re-written. It just sounds like a total nightmare, when we all agree that the top floor flat can convert the loft space in exchanging for taking responsibility of the roof. Does it really have to be so complicated, and expensive?
If you are changing the deeds permanently then there will be a expense. A letter cannot alter the deeds and I have seen plenty of issues which have arisen down the line where a previous share of freehold owner has informally given consent and moved on and the new owners of their share have denied that that arrangement was binding on them. In such circumstances payments needed to be made to buy the lease space ‘again’ even though fully converted at that point. It was essentially a ransom. These types of dispute can sometimes take years and much more expense to sort out. If it is amended on the deeds and registered with Land Registry then it will clearly bind automatically any future owner. Do it right first time.