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

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    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.

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