Is the loft, cellar or balcony included in the lease?

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

    Is the loft, cellar or balcony included in the lease?

    What follows is necessarily a summary of the law. Every case depends on its facts. The devil is often in the detail.

    I refer only to lofts, but the same principles apply to balconies and cellars. Indeed, depending on circumstances, they may extend to other features such as stores and yards.

    The first port of call is the lease. If the lease expressly includes or excludes the loft that is conclusive and you need go no further.

    If the lease is silent on whether the loft is included or excluded, you need to look and see if there is anything in the lease which points to the loft being included or excluded. For example, the reservation of some right over the loft in favour of the landlord and/or other leaseholders indicates it is included, whilst the grant of a right over the loft to the tenant indicates it is excluded. If the lease gives conflicting indications they should be resolved in favour of the leaseholder.

    Any provisions in the lease relating to repair are not relevant for determining if the loft is included.

    If a careful reading of the lease gives no pointers the next step is to see if section 62 of the Law of Property Act 1925 assists. The relevant subsections for a lease of flat are:

    (2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof.

    And

    (4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.

    Further, section 205 defines “conveyance” as including “lease”.

    Section 62 is a “word saving” section. Its effect, subject to subsection (4), is to include all the things listed as if they were set out in the conveyance; they are not implied, but actually deemed to be included. That is important because it means (unless the contrary is expressly stated) that any description of the property in the conveyance and/or any conveyance plan do not limit the extent of the property.

    Whilst subsection (2) does not specifically refer to lofts and balconies, its tenor is such that they must be included.

    What needs to be asked is (summarising the last part of subsection(2)) if the loft appertains to, is occupied or enjoyed with or is appurtenant to the flat. If, at the time the lease was granted, the loft was accessible only from the flat the answer is almost always going to be that it is included. In any other case it is going to be a question of degree.

    In summary, if the lease is silent, the property is of standard construction and the loft is accessible only from the flat a landlord is going to be hard pressed to argue it is not included.

    If wanting to make alterations, whether the loft is included is only one aspect. If the roof is excluded you cannot put windows in it without the landlord's permission. Consent may be required for some or any kind of alterations. Any provisions in the lease relating to use of the loft must be complied with.

Latest Activity

Collapse

  • Boundary dispute
    Pilavas719
    Hello All,

    Thanks for setting this forum up.
    I have been going through a boundary dispute since I moved into our current property a little background below:

    We moved in on the 12th of July 2016 and the following day my next door neighbor tried to moved the fence 12...
    14-10-2019, 14:06 PM
  • Reply to Boundary dispute
    Pilavas719
    Thanks Lawcrancher, I have visited Jon Maynard's website I even had the pleasure of booking an hour consultation with him, he completely agreed that my neighbour was in the wrong. I have probably read everything online about boundary disputes already. I have come across this forum today and thought...
    14-10-2019, 16:04 PM
  • Reply to Boundary dispute
    Lawcruncher
    The following statements are usually true:

    · If a house owner wants to build an extension and it would be handy if the neighbour's fence was in the wrong place and could be moved towards the neighbour, the fence is in the right place and the boundary follows the fence.

    ·
    ...
    14-10-2019, 15:56 PM
  • Reply to Boundary dispute
    Pilavas719
    A line drawn at the 50% mark on the title plan with no measurements has an accuracy of a meter, Since the title plan holds no ground to demarcate the boundary line render's it useless in my case. we are disputing 3.6 meter of land between our properties where I have 2.2m and my neighbour has 1.4m. ...
    14-10-2019, 15:54 PM
  • Reply to Boundary dispute
    AndrewDod
    Did the neighbour object to the trespass of by the fence previous to your ownership? How was this dispute resolved? Whilst boundary plans are not definitive, a line drawn at the 50% mark in relation to actual structures is at the 50% mark.

    How do you actually know that the neighbour has...
    14-10-2019, 15:44 PM
  • Reply to Boundary dispute
    JK0
    You might want to craftily find out when your neighbour moved in. If the fence was in its present position then, I can't see he has a leg to stand on.
    14-10-2019, 15:29 PM
  • Reply to Boundary dispute
    Pilavas719
    I thought you can't base the position of a boundary on a title plan given the general boundary rule. Surely If this is what the LR practice you can't just move a boundary based on plans alone. If what you're saying is right I can still make an adverse possession claim and claim the land with proof that...
    14-10-2019, 15:15 PM
  • Reply to Boundary dispute
    Pilavas719
    Thanks JK0, The previous owner has given me a sworn statement to support this. I know the surveyor we will appoint will be RICS and follow certain protocols....
    14-10-2019, 15:05 PM
  • Reply to Boundary dispute
    JK0
    You need a statutory declaration from the previous owner (at your expense) that the fence has been where it is during his ownership. Then the clock is not reset.
    14-10-2019, 15:00 PM
  • Reply to Boundary dispute
    Pilavas719
    Hello Andrew Dodd,

    Thanks for your reply, you mean the clock resets itself once I have bought the property ?

    What If I have evidence proving the fence to be long standing for over 30 years, even longer.

    I feel he is trying it on since he lived their 8 years prior...
    14-10-2019, 14:56 PM
Working...
X