Right to freehold: the roof void, the roof and the ground rent

[Libra]

Hello,
The lease of our terraced house demises the roof void but it is silent as to who owns the roof. I understand that in this case the ownership of the roof remains with the landlord. Is this right?
Could this stop us from acquiring the freehold?
We recently read a newspaper article that said that not including the roof is a common trick to block the freehold purchase. Could it be that this referred to if the roof void / loft was also not demised?
I have read the 1967 act and it says that a house is not eligible to enfranchise if a 'material' part of the house is above or below a part that is not demised to the property.
The roof is undoubtedly a 'material' part to any building but it is above a part which is demised to the lease. So, there shouldn't really be a problem to buy the freehold?

Also, the lease does not prescribe an obligation to pay ground rent. There is no mention of 'ground rent', not even a 'peppercorn'. Does anybody know what is the implication to our rights?

I would appreciate your help. It is really important to buy the freehold as the Property management company ( that owns the freehold & we are shareholders) is run by rogue directors. It is the only way to distance ourselves.

Thank you!

[Lawcruncher]

Please set out in full the description of the property as it appears in the lease.

[Gordon999]

I suggest you go to Land Registry Online and buy a copy of the (1) freehold title + Site plan and ( 2) leasehold title + floor plan for the property at your postcode address and number . You can download the record to your computer. and the information will cost £3 or £4 per item by credit card .

Then check if the leasehold title describes your property as a "leasehold house" or "leasehold flat" and you are named as the title holder ..

If the title is leasehold house then you can buy the freehold title under the 1967 Act , and it does not matter if the roof is mention in lease or not.

But if you have any doubts , then send an enquiry with your property title to the legal advisor at LEASE ( www.lease-advice.org ) or Lawcruncher may help you solve your problem.

[Libra]

Thank you Lawcruncher and Gordonn999! Not sure how to post a reply to each of you, so I am posting one for both of you!
I hope this is OK and you can both see my reply.

Lawcruncher,
The lease was drafted in the 80's and it was tripartite: the landlord, the property management company ( RMC) set up to manage the estate and the 'owner' of the property. As soon as the leases were drafted, the freehold was transferred to the property management company. All the residents have a share. Not sure why this happened? If the intention was for the RMC to own the freehold, why didn't they transfer the freehold first and then draft a two partite lease???

The lease never refers to the leaseholders as 'tenants'. It is always the 'owner'.

'The property means the dwelling known as ( the address ) and garage number shown edged red on the Plan. The term 'the property' shall include where the context so admits for the purpose of obligation as well as grant:
(i) all internal and external walls
(ii) the foundations and/or the roof space void

This deed witnesseth as follows:
1. Demise:
In consideration of the price paid by the Owner to the ( Landlord) ( the receipt of which sum the landlord hereby acknowledges) and of the covenants hereinafter contained the ( Landlord) hereby demises ALL THAT the Property TOGETHER WITH the rights set out in Part i of the first schedule EXCEPT AND RESERVING as set out in part II of the First Schedule TO HOLD the same unto the owner from ( date ) for the term of 999 years ( determinable as hereinafter provided)

No mention about 'ground rent'.
The roof is not mentioned in the definition of the "Common parts'. The 'Conduits' refer to the gutters and drains.
The maintenance / repair of the roof is prescribed in the Service Charge items, but so are the foundations and the external walls. My understanding is that the maintenance responsibility can not justify a claim of ownership.

Gordon999
I had a look at our Land Registry title. It is described as 'the leasehold land shown edged with red on the plan of the above title filed at the Registry and being ( the address) and garage.

Could it be that we bought the 'leasehold land' as well as the leasehold property and this is why there is no ground rent?
I have talked to the land registry and their only comment was that they recorded the ground rent as 'nil' because there was no mention in the lease.
Does this affect our right to buy the freehold?

There is only one note: ' There are excepted from the effect of registration all estates, rights, interests, powers and remedies arising upon, or by reason of, any dealing made in breach of the prohibition or restriction against dealings therewith inter vivos contained in the lease.'
Not sure what this phrase means and why the restrictive covenants are not on the register. ???

I have contacted LEASE and the advisor was not certain. To be fair to her, she did research the case law and she advised that she couldn't find anything relevant. They do have an article and they talk about making sure we own the roof void, but she couldn't tell me what happens if the roof is not explicitly demised to the property.
https://www.lease-advice.org/article...f-foundations/

In case you are wondering why we are so keen to buy the freehold of a lease that is for 970 years with no ground rent, the answer is that the directors are mismanaging the estate and the options would be either enter into costly litigation or buy the freehold and distance ourselves as much as possible. We would like to think that by acquiring the freehold, we will limit the service charge to the costs for the communal grounds & we will be able to opt out of the communal heating system.

Thank you for your help. It is so much appreciated!

[Libra]

Thank you LawCruncher and Gordon999.
I have written a detailed reply but I think I have added a link to a LEASE article and this might have triggered a SPAM response from the software.
My post is real and I am really concerned.

I am sure you will see my reply posted soon but in the meantime, I am writing a shorter one.

Lawcruncher,
The lease states that ' The property means the dwelling known as ( the address) and the garage ( number) shown edged red on the plan The term 'the Property' shall include where the context so admits for the purpose of obligation as well as grant:
(i) all internal and external walls
(ii) the foundations and /or the roof space void

It is a 999 years lease and there is no mention of ground rent.


Gordon999,
I had a look at our Land registry title. It refers to the 'leasehold land shown edged with red on the plan of the above title filed at the Registry and being ( address and garage).
It doesn't say leasehold house? Could it be that the title says that we own the lease of both the 'land and the property' and this is why the landlord doesn't have an interest in the land and there is no ground rent mentioned in the lease?

I hope that my 'more detailed' post is not lost as I have included more information.

Approaching the directors of the RMC is not an option.They are against the idea of the 'freehold'.

Thank you for your help in advance.

[Tipper]

I thought that if the 'house' was demonstrably a 'house' then a 'house' is what it is! Also the FTT can rule on this as I understand it.

That said it didn't work for us because of the way our lease was structured and our leasehold house became redefined as a flat! However as my terraced house neighbours also wanted their freeholds we enfranchised the whole block collectively as if a block of flats (under 1993 Act) and then gave ourselves individual freeholds.

[Gordon999]

Libra,

Based on past cases of 999 years leasehold house on low ground rent , the FTT decided the cost of enfranchisement to be around 16 x the annual rent - around £100 plus legal costs.

When you bought the house, your conveyancing solicitor must have bought the leasehold title for a house . So there must be another property title in the records at Land Registry.

I suggest you make an appointment to see the Land Registry Office for your town/city to look for the missing title. Take a photo of the house with you to show the Land Registry Officer.

[Waterbridge]

Libra wrote "In case you are wondering why we are so keen to buy the freehold of a lease that is for 970 years with no ground rent, the answer is that the directors are mismanaging the estate and the options would be either enter into costly litigation or buy the freehold and distance ourselves as much as possible. We would like to think that by acquiring the freehold, we will limit the service charge to the costs for the communal grounds & we will be able to opt out of the communal heating system."

As someone who lives in a leasehold house on an estate with communal grounds etc and who has given some thought to advantages or disadvantages of buying the freehold, I have given thought to how many of the covenants or obligations in the lease would simply be "transferred" to be covenants or undertakings on the freehold when one purchases it, ie to use Libra's terminology, how far can one distance oneself from the directors and the management company after one purchases the freehold?

Is Libra totally convinced that he/she will achieve the separation hoped for by purchasing the freehold?

Issues might include consent for alterations, consent to sub-let, "quiet enjoyment issues" for example protection against a lawn or driveway immediately adjacent to my property being turned into a storage area (perhaps even a garden composting area) or car park, payment of or challenge to service charges or charges for major works, compliance with "estate regulations" which have been introduced subsequent to the lease being entered into.

[leaseholder64]

It seems to me that once you cut yourself off from the RMC, you will have no right at all, beyond the normal right to object to planning permission, that you already have.

Actually, my guess is that any freehold would come with covenants and estate charges that retained the current position with respect to the communal gardens.

[Libra]

Gordon999,
Do I understand well that you are saying that there should be one more title filed at the Land Registry - a title that relates to the house?
No, I don't think the conveyancing solicitor ever had a leasehold title for the house.

Just to be absolutely clear, the title says:
This register describes the land and estate comprised in the title.
Could it be that having the lease of the land means that we have the lease of the building on this land?

If there is no lease for the house registered, what are the implications? Does this mean that all the restrictive covenants are not enforceable?

The lease doesn't mention 'ground rent'. The land registry title says that the ground rent is: Nil.
Any idea if this is important for our rights?

Any answers / ideas / experiences would be really helpful. Thank you!

[Libra]

Thank you Waterbridge and you are right, we won't be able to 'escape' from the problems but we will distance ourselves. I guess your leasehold title does not make you pay for the repairs to all the other buildings / houses on the estate. What we want is to pay only for the communal grounds. To give you an example, a freeholder would pay less than a third of what a leaseholder pays. A lower service charge & the freehold will ensure the saleability of the house.

[Libra]

Thank you Leaseholder64. Is there a reason why you think that we would cut ourselves off the RMC? We would still have a lease and I appreciate that it will be reasonable to pay for the maintenance costs of the communal grounds.

[leaseholder64]

If you are paying for the maintenance of other properties, I don't see how you can be released from the freehold without all the other leaseholders agreeing to changes in their leases.

Are you sure that the lease actually requires this, and the RMC isn't simply doing it because it makes life appear easier for them (until they have to unravel the consequences of invalid service charges). I live in one of five blocks of flats, and the leases specify that each block only pays for its own block related costs.

[Waterbridge]

Libra wrote "I guess your leasehold title does not make you pay for the repairs to all the other buildings / houses on the estate. What we want is to pay only for the communal grounds."

This sounds a very unusual lease. Are these repairs internal and/or external?

My understanding is that most "leasehold houses" demise the internal and external walls (with party walls between two adjacent leaseholders), whereas typically a "leasehold flat" demises only the internal walls, ie the structure is retained by the freeholder.

"Paying for the repairs to all the other buildings/house on the estate", sounds like a lease for a flat?

[leaseholder64]

If you buy out the freehold, the lease would normally be merged into the freehold, and there would no longer be a lease. I imagine that the lease is what allows you to be a member of the RMC and therefore influence their decisions. I think you would typically end up with having an estate charge for the communal services. I'm not sure what would happen with the communal heating. You would probably have to be billed for that on a commercial basis, or pay to have it isolated.

If you have no voice on the RMC, they could still put the car park outside your window, but you would have no way to object, within the system.

My gut feeling is that you should be trying to reform the RMC, not declare UDI.

As this estate seems to be fully controlled by the residents, I imagine there was a good reason, other than profiting as a freeholder, for setting it up as leasehold, in the first place, and it would be interesting to hear the other side.