Flat roof or roof terrace not demised

  • Filter
  • Time
  • Show
Clear All
new posts

    Flat roof or roof terrace not demised

    I've been told I should repost my problem in this section to get the best help so here goes. We live in a Victorian conversion comprising a ground floor flat with a kitchen extension into the garden and a flat which comprises the upper floors. We bought the ground floor flat in the early 2000s at practically the same time as the neighbours bought the other flat. Our kitchen extension has a flat roof which up until fairly recently has not caused us any problems. In the last year we have started to have leaks through one side of the extension roof resulting in one wall getting wet and hairline cracks worsening on the external walls. We have discovered that there are paving stones which have been stuck to the felt of the roof at some time and that water is getting trapped under them and is finding its way down into our flat. Moreover the neighbour is using the 'roof terrace' as a storage place for all kinds of heavy stuff (a bit like an overflow for his flat). Builders have seen it and said that both the paving stones and the heavy items are damaging the flat roof and causing leaks. We are insisting that we get the flat roof repaired but unfortunately the neighbour is being very obstructive. We as the ground floor flat owners are in the unusual position of being both a leaseholder of our flat and the freeholder for the entire building, a fact which I presume should put us in a strong bargaining position although it doesn't feel that way at the moment. I have ascertained from the original lease for my neighbour's flat that the roof terrace is not demised to him although the door onto the roof terrace is shown and his lease states that he has " the right to use the flat roof over the lower flat for flower boxes but not to overload the same". Our lease obviously includes the kitchen extension and the freehold includes the garden. As far as I can see from the documents, the flat roof has never officially been structurally converted into a roof terrace. We desperately want to get the roof repaired and are willing to pay half the costs (or all if needs be) but I'd like to know how to proceed as the neighbour is not cooperating and even refuses to take most of the heavy things off the flat roof. Thanks in advance for any advice!

    The best solution with a neighbour is to try to have a reasonable chat and reach an amicable agreement otherwise your relationship is going to deteriorate. If that does not work, it would appear that your neighbour is in breach of the terms of the lease and you could write a formal letter asking him to remove the “heavy stuff” from the flat roof. How long have you been aware of the items on the roof and did you take any steps when you first noticed them? If he fails to remove them, you can inform him that you will remove them at his expense. You obviously need to repair the roof and it depends on the terms of the lease, who is responsible for the cost. If you intend to claim damages as a result of his breach of the lease, you would need to instruct a surveyor to issue a report confirming that he is responsible or partly responsible for the damage to the roof.


      Thanks for the advice. We are trying to reach an amicable solution but it is a bit like pulling teeth. When we bought the flat he just used the '''roof terrace" as somewhere to sit outside and a few pots. In the last year or so we have had the leaks and in seeing that he had started to use the roof to store rubbish and other heavy items we have told him on a number of occasions that the roof wasn't built for that reason and it was more than likely contributing to the damage we were suffering down below. With regards to the paving stones which are attached to the felt, we didn't realise they were there either and they trap water and definitely need to come off. I am hunk these were probably there when he moved in but I'm pretty sure that they shouldn't be as they add significant weight to the roof and affect the drainage. It is only since this problem has escalated that we have realised by looking at the leases and the freehold paperwork that his lease ends at the door of the roof terrace and as we are the sole freeholder we can probably get the work done from the garden without needing access to his flat. The problem is that he believes the roof terrace is his and he can do what he likes. At the moment he is allowing us to get builders in so that we can get quotes for the work. However I am very worried that he might refuse access and in other ways try to obstruct the work getting done. I suppose I would like to know how I stand legally in the event that access to his flat is denied and we have get the work done without him agreeing.


        No-one said it was easy, sometimes you have to grind your teeth and think several times before speaking in order to try to reach an agreement with a neighbour, but that is the best solution.

        Perhaps you can mention that you have referred to the lease and invite him to do the same. If you have not done so, perhaps you can explain what you are doing and your reasons and generally keep him informed.

        If you fail to reach agreement, you need to decide whether or not you intend to take action over the breach of the lease. You may be able to claim damages if you can prove that the neighbour has placed heavy objects on the roof which have caused damage.

        You should check carefully the lease to see whether or not the leaseholder is responsible for any part of the cost of repairs. You should warn him in advance, if you are going to ask him for a contribution.

        You should put in writing any requirements to access the flat roof and ask him to remove any of his belongings.

        Do you need access to the other flat? If he attempts to obstruct the work, you would be able to claim damages from him. Presumably the contractors would support you but you should collect evidence, pictures etc


          Once again thanks for the advice. The work could be done with access by ladders from our garden. Although it would be easier if the workmen had both options. We have a fair bit of photographic evidence of the overloading of the flat roof so that is useful as you say.



            How many flats in total in the building?
            Is there a management Company looking after the building?
            What does your lease say about your demised space EG any mention of the flat roof or airspace above?


              There are just the two flats. We have the ground floor with garden and he has the upstairs flat which comprises the second and third floors of the Victorian terrace. When we moved in we bought the Leasehold for our flat and the freehold for the whole building. Unusually the garden is only on the freehold so we needed both. The neighbour who moved in a few months before us was offered the freehold but turned it down so he only has a leasehold for his flat. There is no management company for the building and we as the freeholder sort out the insurance for which the neighbour pays us 11/20ths 6 monthly. In the lease it states that we have to get any maintenance work done and then charge the other flat his share. With regards to demised space, his flat is lined in red ending before the roof terrace but it does show the door. The only mention of the flat roof is in his lease saying that he can use it for flowerpots but can't overload it. Obviously the kitchen extension is in my lease and the freehold plan includes the garden. There is no mention of the airspace above the flat roof.


                Hello again,
                I have one or two more questions that I need help with if possible. We have reached the point where we have managed to get several quotes for a new flat roof surface. The neighbours let the builders in very begrudgingly each time and every builder said that the overloading of the roof terrace had contributed to the damage although it is probably due for repair anyway. So we are now in the situation where we have told a roofer to proceed and we are waiting for him to come back to us with a possible date. We had a meeting with our neighbour which was extremely tense and difficult in which he constantly mentioned his desire to have decking and was talking about strengthening the roof. We have chosen a strong waterproof covering for the roof terrace but it is not really suitable for decking unless it was floating (and even then I have my doubts) and we definitely do not want to change the structure of the roof. I also mentioned the lease and how it only states 'use for flowerpots' and 'not to overburden', to which he said the word 'use' is very vague and he also insinuated that he could build on it if he likes. He has kind of agreed to allow the work to go ahead although he is yet to remove all the heavy items from the roof even after we have asked him on numerous occasions. With regards to other freeholder responsibilities such as collecting insurance from him he asked to be put on a direct debit for his share of the building insurance but then refused to pay the backlog which was owed us so that was scrapped. We have to chase him up for the buildings insurance for which he is often very late and always 4 or 5 months behind. Any work on common areas such as the front garden, passage, or any external repairs, it is very difficult to get him to pay unless it is directly affecting his property. We are incredibly stressed about this and are wondering how to rectify the situation going forward even if the flat roof is sorted out. I am wondering whether anyone thinks it would be advisable to appoint a managing agent to manage the freehold for us.


                  I'll leave the legal questions to those better qualified.

                  You say you have chosen a "strong waterproof covering" but why did you choose this? You should have provided the leaseholders with estimates of the costs and allowed 30 days for comments. Did you get more than one quote and have you discussed why you have opted for this builder/ this solution?

                  I opt for fibreglass for flat roofs. You can ones than can be walked on so this would seem the most appropriate solution.


                    Thanks for the reply. We have got 3 quotes over the last few weeks. We have sent these to the other flat for them to look over. They have had a couple of weeks looking at them and deciding which they prefered. In the end after looking into all the different surfaces we did indeed choose to go with the fibreglass option. When we met with our neighbour a few evenings ago he also agreed the fibreglass was the best option of the three. The problem is that he has said that they aren't happy with the finish that it will give and that they would like decking. At the moment the roof has asphalt and tiles on it which are in a very poor condition and hence the leaks into our flat. Asphalt is a heavy surface so it would make sense to replace it with lightweight strong fibreglass. The decking idea causes problems because of the extra weight and we are not sure if it can be put on the fibreglass. Also it might need planning permission. At the moment he is basically overloading the flat roof with excess stuff from his flat. They had a baby a couple of years ago so they have less space inside but the roof isn't made for that purpose. He is basically holding out for decking and refusing to clear the terrace for the builders to do their work. The extension is only on our lease and not on his although his lease gives him 'access to the flat roof over the extension for flowerpots but not to overburden'. We want him to use the terrace but we really need to mend the leaks into our kitchen diner which come every time it rains. We are also paying for all the work upfront.


                      I have not read through the entire thread but based on your original post and a few other points gleaned, please see my comments below.
                      1. I would check with planning/building control to check if your plans require any permissions;
                      2. Check as well the requirement for roof terraces as I believe there are regulations related to safety e.g. surround to prevent people falling off of the roof;
                      3. As you are the freeholder and moreover the leaseholder only has use specified in the lease you arguably need to address this; put communications in writing;
                      4. Bear in mind as a freeholder there are legal obligations and if you allow this situation to go on you could end up with problems further down the line;
                      5. If your neighbour’s lease requires them to contribute towards the works and the amount will be more than £250 you need to undertake a Section 20 consultation. See: https://www.lease-advice.org/advice-...panies-agents/

                      Section 20 will also provide an opportunity for you to clarify and justify the work being undertaken and help with 3. above and enable you to incorporate relevant details 1. and 2.. The leaseholder will be able to submit observations during the process (these must be in writing) and you will need to respond, in writing, to these. This will provide a record for the future, if required.

                      The leaseholder will also be able to nominate contractors. You are obliged to attempt to take up an estimate from at least one of the contractors nominated assuming they meet the criteria. It is usually a good idea to include the CRITERIA contractors will need to meet (e.g. insurances; other credentials) in the first Section 20 Notice: 'Notice of Intention'.


                        I'm afraid you are going to have to get tough with him - point out that he has limited right to use the roof, that you need planning permission if it being used permanently (do you have the original planning permission for the property?) and that it's not safe to have a young child out there. If they refuse to remove any heavy items you will have to have your workmen do so - and bill him for the costs of removal.


                          Thank you, everyone for taking the time to reply to my post. All of the advice you have given is very helpful. We have decided to go to a solicitor just to go through all the paperwork with us and clarify the rights and responsibilities of the lease and to look through all the other paperwork we have. It has become evident that our neighbour is trying to use the fact that we desperately need to repair the leak in our kitchen diner to try to influence what happens to the flat roof. He basically wants to put decking up there. We just want to put a good waterproof and strong surface up there and have let him know that fibreglass is our preferred option. Decking would probably need planning permission as well. It is clear going forward that this type of issue will continue to arise unless the situation is clarified by a solicitor.


                            Thank you for letting us know your decision; consulting a solicitor is likely the best course.

                            I wish you luck resolving the issue.

                            You might like to let us know the outcome as it may be helpful to others.


                              Hello again,
                              I'd like to update you all on the situation with the flat roof. Having been to a solicitor we are now clear on the lease. As we thought the neighbour has no right over the flat roof apart from a very specific use. The lease states that flat 2 (the upper flat) has ' The right to use the flat roof over the lower flat for flower boxes but not to overload the same'. In the opinion of the solicitor this was put into the lease specifically for the kind of situation that we find ourselves in, and that the leaseholder of the other flat is in breach of the lease by keeping heavy items on it. As the roof terrace is in no way demised to him and is on our lease and our freehold we have the right to get any work done to repair our diner and lay a new surface on the roof without any interference. However this is easier said than done! Currently we have got the builders coming to repair the roof and put a new surface on it in a couple of weeks time. The neighbour has said that he is ok with this happening but is yet to clear the heavy items from the roof. He has insisted that he wants to be there when the roof is opened and may want the roof to be strengthened. We don't mind the roof being strengthened if it is a safety issue but not just so our neighbour can put down decking which will need planning permission and may effect the buildings insurance and we haven't agreed to this. We feel that as soon as the new surface is down we will have to inform him that if he tries to have decking put down or in any way tries to structural change the roof we will have to contact his mortgage provider to inform them of a breach of lease. We don't want to have to say this but can see no other way forward if he continues to overload it or tries to build on it. As a very last resort we can start breach of lease proceedings against him but we really don't want to do this.
                              Going forward I can see more problems with regards maintenance happening in the future. With this in mind I have a couple of questions with which I'm hoping someone can help me. Firstly is it possible for us to employ a managing agent for the freehold? Are 2 flats in a Victorian Conversion in Streatham Hill too small for a management company to take on? Would a company take on freehold where there are these type of disputes happening? We just want to make sure that the building is maintained so wouldn't mind paying regularly for maintenance which needs doing.
                              Once again, any advice given is much appreciated.


                              Latest Activity


                              • Lord Best report
                                For anyone interested -

                                Chapter 6 focus on Leasehold..

                                18-07-2019, 12:46 PM
                              • Reply to Lord Best report
                                ARMA estimate that £1.3 billion of unprotected client money is held by managing agents. So what is proposed? It is suggested that the Government considers making sinking funds mandatory in both existing and new leases, which is likely to add to the figure.

                                It is also suggested that the...
                                21-07-2019, 12:12 PM
                              • Reply to Lord Best report
                                This has fudge written all over it.

                                Suppose that all agents declare an average 5% commission, I can imagine the Government and the new regulator claiming then that they have successfully reduced the rates of commission and acted in the best interests of all leaseholders, even though they...
                                21-07-2019, 11:47 AM
                              • Reply to Lord Best report
                                The new regulator is supposed to be self financing, at least after the start up period, which probably means that the leaseholders will pay for the cost one way or another....
                                21-07-2019, 11:29 AM
                              • Reply to Lord Best report
                                Carrying out spot checks would require an increase in tax payer spend. No Conservative government is going to sanction that.

                                (As I said elsewhere, I think the country has reached a point where respect for the law is in terminal decline, as a result of not funding pro-active enforcement,...
                                21-07-2019, 11:13 AM
                              • Reply to Lord Best report
                                I accept that transparency is better than nothing but can anyone explain how it assists a leaseholder if an agent declares that he receives say 5% commission on an insurance policy? A leaseholder is unlikely to be able to prove that the disclosure is incorrect. To have any meaning at all, someone should...
                                21-07-2019, 11:04 AM
                              • does solicitor no longer work for you after completion?
                                Hello guys

                                After asking a question today to my solicitor, I received this response below

                                Our instructions are now concluded in respect of the conveyancing and there is no further correspondence for us to forward to you apart from the completed HMLR registration which will be...
                                19-07-2019, 13:00 PM
                              • Reply to does solicitor no longer work for you after completion?
                                I suspect that this is connected with your comments on one of your other threads regarding the service charge deficit.

                                Your solicitor appears to be saying that he has collected the service charge deficit from the vendor on this occasion but if the freeholder raises any further charges which...
                                21-07-2019, 07:21 AM
                              • Secret commissions
                                The issue of freeholders and managing agents fiddling insurance commissions at leaseholders’ expense was raised in the Times earlier this month.

                                Sir Peter, 74, said that secret commissions were part of a broader pattern of mistreatment of leaseholders. “Those receiving cowboy commissions...
                                18-07-2019, 20:27 PM
                              • Reply to Secret commissions
                                Transparency and accountability is only part of the issue. Proving that all commissions have been declared is another matter. Proving that 3rd parties are connected with the freeholders and agents is another matter.

                                Insurance only scratches the surface, what about all the other expenditure...
                                21-07-2019, 06:03 AM