Property alterations

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    Property alterations

    Apologies for the long winded detail...
    I bought a first floor flat 10 years ago where the local council were the freeholder. The previous leaseholder had partly converted the attic without consent or building regs approval. The conversion included electrics,plastered walls, ceiling, skylight, radiator and boarded floor. For the purchase to go through he was informed by the freeholder that he must remove the electrical installations (plugs sockets), the plumbing and the loft boards, which he did. The removal of these was inspected and approved.
    At some point in the last 10 years I have put some boards down and used some of the space for storage. The council also transferred the freehold (along with all other housing stock) to a housing authority that was created.

    I recently contacted the freeholder to seek permission to remove a chimney breast. While visiting my flat they inspected the loft space and they have now sent me a letter stating that I must remove everything from the loft space as it doesn't have their approval. This includes all of the plasterboard, removing the window and fixing timber rafters and battens in the void as well as laying new insulation to the floor at my cost.

    Can they ask me to do this, given that the when I purchased the property the freeholder was satisfied with the removal of the electrcs, plumbing and loft boards?

    #2
    You did not buy the flat . You bought a lease which is a long term rental agreement.

    Your status under the lease is that of leaseholder or tenant. You are only entitle to use the area in your lease ( which is marked in red on the site plan held at Land Registry ) .

    Comment


      #3
      Unless you were issued with a deed of variation for the lease, at most what you had from the council was a licence. I can't imagine they would have given a licence for the whole balance of the lease, and I think licences are personal, whereas leases go with the property.

      Comment


        #4
        Would it be logical to assume that the OP is only liable to reinstate the loft to the condition in which they found it when they acquired the lease? Especially in the light that the previous freeholder had pardoned the works carried out by the previous leaseholder (save for some partial reinstatement) and allowed for the sale to proceed?

        Liljo_UK - Is the curent freeholder not open to an idea of granting a retrospective licence? Or is there a question of whether the loft forms part of your flat?

        Comment


          #5
          As I understand it, the lease is irrelevant here. This is a similar position to two owner occupied houses where one owner has built a garden shed on the others land with the other's permission, and then sold the property.

          Actually the lease might be relevant, but only to the extent that it might make explicit restrictions that are only implied in the houses case.

          Comment


            #6
            They have said that the roof space is not part of the demised property. To quote they said "the descrption of the Demised property is the first floor flat, there is no description towards the loft space and as such the loft is considered to be part of the freehold title, and thus not within your lease agreement."

            Comment


              #7
              Originally posted by Gordon999 View Post
              You did not buy the flat . You bought a lease which is a long term rental agreement.
              Statements such as that are apt to mislead, not to mention give encouragement to landlords with delusions of grandeur who want to lord it over their tenants.

              "You did not buy the flat" is true, but only in the context that all land belongs to the Crown and all that anyone can own is an estate in land. Both landlord and tenant own estates in land, though they are of different kinds. Rather than think in terms of who owns the bricks and mortar, which strictly does not belong to either landlord or tenant, it is better to think in terms of what rights each has. Basically, but without naturally forgetting the obligations imposed on the parties by the lease, what the tenant owns is the right to occupy the property and what the landlord owns is the right to receive any rent reserved and the right to possession when the lease ends.

              Originally posted by Gordon999 View Post
              Your status under the lease is that of leaseholder or tenant.
              True. However, whilst a lease for a year and a lease for 999 years are qualitatively the same thing in that both involve the relationship of landlord and tenant, quantitatively there is a huge difference between them so that in practice they have to be treated as two different things.


              Originally posted by Gordon999 View Post
              You are only entitle to use the area in your lease ( which is marked in red on the site plan held at Land Registry ) .
              That is not necessarily always the case. The effect of section 62 of the Law of Property Act 1925 has to be taken into account. See further the thread referred to below.

              *

              I draw the OP's attention to this thead: https://forums.landlordzone.co.uk/fo...-in-the-lease= I suggest he looks carefully at his lease and then comes back reporting what it says - and indeed what it does not say. He can also let us know the layout ofthe building. When we have all that information we will have something to go on to address his queries.

              Comment


                #8
                If it can be argued that the loft is included in the lease (by any means), then it is subject to the same lease terms/covenants as the flat itself. There would be a qualifying restrictive covenant preventing structural/any alterations without freeholder’s consent. From what the OP described, it doeesn’t sound like he made any alterations to the loft. His predecessor did, but then those works were pardoned by the previous freeholder. Thus, how can the OP be liable for something that they have not caused? I would refer here to the case of Rapose v Tehranian.

                Even if the loft is not Included, why would the OP be liable for the actions of their predecessor? There’s possibly an issue with causation. The previous freeholder checked the works, asked to remove offending items and allowed the sale to proceed. Would the new freeholder not be estopped from asserting that the works were carried out without consent? Please check if Lester v Woodgate (2010) helps with this.

                Also, the new freeholder purchased the building as was, with the loft in a partially converted state. Did they miss the works in the loft during the survey/valuation, or was there a lack of “due dilligence”? I would argue that they ought to have known of the state of the loft and thus raised their issues at the outset. Again Lester v Woodgate may shed some light on the doctrine of laches.

                I am not legally qualified and this is simply my analysis of the situation in general.

                Comment


                  #9
                  Silverspeed - the previous freeholder was the local council and they transferred their whole housing stock across to the new freeholder. No surveys or valuations (certainly internally) were made towards this specific property prior to the transfer of the freehold.

                  I have just found a letter from the previous freeholder confirming that the installations had been satisfactorily removed and stating that the purchaser (i.e. me) should be informed that the attic must not be used as a habitable space. It doesn't state that it must not be for other purposes.

                  Comment


                    #10
                    Liljo,

                    Ah! You should formally lodge a copy of that letter against your leasehold title at Land Registry and afterwards point out the letter at Land Registry to your freeholder.

                    Comment


                      #11
                      Lawcruncher -

                      OP has said in first post :

                      " I recently contacted the freeholder to seek permission to remove a chimney breast. While visiting my flat they inspected the loft space and they have now sent me a letter stating that I must remove everything from the loft space as it doesn't have their approval. This includes all of the plasterboard, removing the window and fixing timber rafters and battens in the void as well as laying new insulation to the floor at my cost."

                      I would doubt if there is handover of any letter to Local Council for installation of window ( from previous leaseholder.)


                      By the way, I think you may be the best person to respond to the Law Commission's Consultation on Commonhold ( before 18th April) as you can explain how Commonhold works in Spain . Please do participate .


                      https://www.lawcom.gov.uk/project/commonhold/

                      Comment


                        #12
                        The OP is rather assuming that the loft is not included. If it is not then various points can be addressed. However, if it is included the points to be addressed are different. We therefore need to hear further from the OP.

                        Comment


                          #13
                          It' taken me sometime to obtain a copy of my lease as I misplaced the original copy I was given upon purchase. I have read the lease and the description of the demised premises is below:

                          "All that flat known as (address) situate on the first floor and edged red on the plan annexed hereto together with the use of the garden area shown coloured yellow on the plan annexed hereto."

                          Comment


                            #14
                            Originally posted by Liljo_uk View Post
                            It' taken me sometime to obtain a copy of my lease as I misplaced the original copy I was given upon purchase. I have read the lease and the description of the demised premises is below:

                            "All that flat known as (address) situate on the first floor and edged red on the plan annexed hereto together with the use of the garden area shown coloured yellow on the plan annexed hereto."
                            So far so good.

                            You now need to check as follows:

                            Is there anything elsewhere in the lease which specifically says the loft is included or excluded?

                            Is there anything in the lease which indicates an intention to include or exclude the loft? For example, a right granted to the tenant to enter the loft indicates an intention to exclude it, whilst a right reserved to the landlord or other leaseholders to enter the loft indicates an intention to include it.

                            If there is nothing whatsoever in the lease expressly or impliedly indicating that the loft is included or excluded then section 62(2) of the Law of Property Act 1925 comes into play. In full it says:

                            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.

                            Edting the above words to remove anything not likely to be relevant to the average first floor flat we can rewrite the description of the flat in the lease as follows:

                            "All that flat known as (address) situate on the first floor and edged red on the plan annexed hereto together with the use of the garden area shown coloured yellow on the plan annexed hereto and together also with all the erections, fixtures, areas, cisterns, sewers, gutters, drains, ways, passages, lights, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the flat at the time of this lease demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the flat.”

                            The next step is to answer the following questions:

                            Is there anything unusual about the layout of the building containing the flat?

                            Is access to the loft exclusively from the flat?

                            Was such access in existence at the date of the lease?

                            If the answer to the first question is "no" and the answer to the two other questions is "yes" and the lease gives no indication whatsoever as to whether the loft is included or excluded then, so long as there is no devil in the detail, the loft is included in the lease.





                            Comment


                              #15
                              Thanks for your reply Lawcruncher.

                              There' s nothing unusual aboit the layout of the flat and the loft space is only accessible from my flat. I'm not sure if the loft hatch was there when the lease started, but I'm making the assumption that it was on the fact that a leaseholder in the flat opposite is able to access the roof space via an existing loft hatch.

                              The only reference that I can see in the lease to anything that comes close to the loft is the following excerpt:
                              in pursuance of the said agreement and in consideration of the sum paid... and in consideration of the rents and covenants hereafter contained and those implied by statute herein the council hereby demised unto the lessee all that the premises more particularly described in the first schedule hereto together also with easement rights and privileges mentioned in the second schedule hereto but subject as therein mentioned and including one half part in depth of the ceiling and one half part in depth of the party walls of the demised premises and other such surrounding flat premises as may be appropriate subject to the qualification that all such rights easements reservations and privileges herein granted to the lessee shall be capable of alterations variations or extinguishment by the council on 6 months prior notice in writing given at any time in the event of the council wishing to rebuild or redevelop the whole or any part of the property over which the lessee has been granted any easement reservation right or privilege.....

                              Comment

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