ownership of loft space

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    ownership of loft space

    Hello,I own a long leasehold purpose built edwardian maisonette on the first floor of a 2 storey building.There is a similar flat below me.The attic is directly above my flat and only accesible from my flat.
    my lease includes the roof and i have to maintain the roof and can recover 50% of any roof costs from the flat below.

    there is a clause to allow the freeholder to enter the demised premises (my flat)to execute repairs to "other parts of the building".
    there is also an easement in the first schedule which gives me the right(along with the lessee of the downstairs flat) to erect and maintain 2 television aerials "in" the roof of the building.

    My freeholder is saying that because i have been expressly given the right to enter "in" ( not "on") the roof then that must mean that the attic is not in my demise.He says that I definitely own the actual roof structure(tiles/joists etc) but that i dont own the loft space under the roof structure.

    I would be very grateful for any advice. I have read a lot of the posts but nothing that exactly matches this issue of an easement" to erect an aerial in the roof"

    #2
    If you read this thread: https://forums.landlordzone.co.uk/fo...-in-the-lease= you will see I refer to section 62 of the Law of Property Act 1925. In many cases section 62(2) will operate to include a loft space. However, section 62(2) operates subject to section 62(4) which in your case seems to operate in favour of the landlord. The landlord's argument is certainly one which has to be addressed.

    The first thing to do is to have another look at the lease and see if the landlord reserves any rights in respect of the roof space other than a right to get to it. If he does, then that cancels out the effect of section 62(4) because the two rights would be inconsistent with each other. However, if he reserves the right to get to the roof space (and no other rights in respect of it) that pretty much confirms an intention to exclude the roofspace. Are there any provisions in the lease in the form of restrictions relating to the use ofthe roof space?

    In the absence of anything in your favour in the lease, I think you may be struggling a bit to get section 62 to work in your favour. You could argue that it is a nonsense to exclude the roof space when the roof is expressly included. Depending on the wording you could argue that the inclusion of the roof indicates that the roof is a boundary of what is included. In either case you then suggest that the grant of the right to erect an aerial in the roof is an error and an insufficient indication of a contrary indication.

    Perhaps you can set out in full the description of the property in the lease and the rights reserved to the landlord and also any other provisions (other than those relating solely to repair) which refer to the roof or roof space.

    If you cannot show that the roof space was included from the start, you may have a case if you have actually been using the roof space for sufficiently long. Before I expand on that perhaps you can let us know the position.

    What has prompted your question? Are you hoping to convert the roof space to living space or do you just want to use it for storage?

    Comment


      #3
      Thankyou so much for your help Law cruncher.I would like to convert the attic to habitable space but the freeholder is asking for a premium.

      the roof is hardly mentioned in the lease. the property description simply says- (a) ground floor landing,the front door and the staircase leading to the said upper flat and (b)one half part in depth of the structure between between the ceilings of of the lower flat and the floors of the upper flat the internal and external walls of the upper flat down to the same level and also the roof above the upper flat hereby demised.

      The only other mention of the roof in the lease is 1- my liability to "maintain the upper flat and every part thereof and all buildings roof or erections for the time being included in this demise

      2-in the first schedule of easements granted to the lesees-"the right to erect and maintain two television aerials in the roof of the said building with the necessary leads therefrom making good all damage done and to be affixed in the position previously approved of in writing by the lessor.

      I would also add that the 2 flats are edwardian purpose built in 1905 and previously water tanks for the 2 flats resided in the loft and as such it was historically something of a joint service area albeit only accessible from the trapdoor in my flat

      Many Thanks


      Comment


        #4
        All noted. What rights are reserved?

        Comment


          #5
          Hello Lawcruncher,

          the second schedule(easements and rights excepted and reserved by the lessor and the other lessee) says

          a) all such easements of way support and for the supply of gas electricity water soil and smoke and telephone and other services in over and upon the demised premises as shall be necessary for the reasonable enjoyment of the lower flat and the entrance hall landing and stairway and other premises now or formerly comprised in the above mentioned title and in particular

          (b)all such easements and rights of the character of those granted to the lessees by clauses (a) (b) (c) and (d) of the First schedule but with the necessary adaptions to render them applicable to and for the benefit of the lower flat and other parts of the land now or formerly comprised in the above mentioned title and the lessor and her successors in title as the owners and lessees thereof.

          The first schedule is rights and easements granted to me which are basically

          a-the right to electricity /gas/telephone/water soil etc etc running through the lower flat with the right to repair etc all equipment serving my flat

          b-the right for me to enter into the lower flat or any part of the land for cleaning/maintaining /renewing my flat or any service apparatus

          c-the right to support from the lower flat and other parts of the building

          d-the right to erect and maintain two tv aerials in the roof of the said building and such aerials to be affixed in the position previously approved by the lessor.

          My solicitor is suggesting that I do own the roof space because the only access is through my ceiling hatch and because I own the roof(tiles,structure etc)( which I have to maintain) and therefore I must logically own the space underneath the roof structure.She(solicitor) is saying that clause d in the first schedule which gives me a right to put two aerials "in" the roof is clearly a drafting error and it should have read "on" the roof instead of "in".

          I am not sure about this because I don't think I would need an easement to put an aerial on my own roof( which i do indisputably own)

          Many Thanks

          Comment


            #6
            The rights granted and reserved do not yield anything which cause me to revise what I said above.

            Your solicitor is thinking along the same lines as I am. If the word "in" were "on" I think you would be home and dry. Unfortunately we have "in". There are two possibilities.

            The first is we have to accept that the word "in" is not a mistake and that the phrase "in the roof" is a colloquial way of saying "in the loft". That leaves you arguing that granting you the right was a mistake because it is a nonsense to own the roof but not the space under it.

            The second is to argue that "in" should be "on". The immediate problem, taking the clause on its own, is that "in" is not obviously wrong because "in the loft" is a perfectly reasonable interpretation of "in the roof" in the context. You get a little help from the words "in the position previously approved of in writing by the lessor". Why would the lessor need to approve the position if the aerials are going to be out of sight in the loft? A possible clincher is if, when the leases were granted, each flat in fact had an aerial on the roof.

            You can further argue that if there was an intention to exclude the roof the lease would have made it clear. After all, the landlord can make no use of the roof as he has no right to get to it other than as ancillary to other rights he has. The snag with that argument is that section 62 is a word saving provision and you cannot get away from an express grant of a right over an area being an indication to exclude it.

            In my view the position is not clear enough for you to proceed with confidence that the roof is included, but that does not of course stop you from asserting boldly that it is.

            Bear in mind that even if you persuade the landlord that the roof space is yours, you probably still need his consent to make any alterations. If there is an absolute prohibition on external and/or structural alterations and they are involved, you will still have a problem. It also looks like you need to involve the lower floor owner as he has a right to keep an aerial in the roof space.

            Comment


              #7
              Thankyou Lawcruncher
              That was a thorough and easily understood analysis of my issue

              Comment


                #8
                In post 6:

                if there was an intention to exclude the roof

                should read:

                if there was an intention to exclude the roof space

                and:

                the landlord can make no use of the roof

                should read:

                the landlord can make no use of the roof space

                Comment

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