Roof terrace over garage. Who pays for garage roof?

[Qwerty1]

Hi,
In a converted Victorian house, a roof terrace is built on top of a garage, and they belong to different people. If the roof needs repairs, is this considered a party structure with costs split?
The leases don't have a specific reference, because they point to the leases of the flats saying equivalent covenants apply.
There is a clause saying "every internal wall separating the flat from the adjoining flat shall be a part wall severed medially".
Would the garage roof be considered equivalent to an internal wall even though it is not?
Or would it be considered part of the garage structure with costs falling on the garage owner?
Thanks

[Lawcruncher]

I think we need to see the description of each flat and the repairing covenants in full before offering an opinion, though we can safely say that the provision relating to internal walls is not going to apply.

[ram]

If there is no definite mention in the lease stating that the garage structure is the leaseholders demise, and / or that that leaseholder of the demised garage must repair all parts of the garage, then it's only fair that if two leaseholders share use of the structure; one leaseholder so as to keep the weather out, and one leaseholder to be able to stand on it, the costs to repair / replace should be shared.

Or, depending on the construction,
The terrace leaseholder pays to remove the terrace material to expose the original tiles / felt.
The two leaseholders pay half each to repair or replace the roof,
and the terrace leaseholder pays to put new footings down. / replace original.

Garage owner only needs to repair the roof, as if demised to him with full repairing obligations, he has no need to pay terraced owners costs to enable him to access the roof.

As you say, the lease is silent on the matter, so one can only advise what may be the case in this instance.
If the lease is not clear, you may all end up in legal battles, so best to start with above, and go from there.

[Qwerty1]

Thanks. The garage lease is very short, and says:

The covenants by the Lessor and Lessee the conditions the agreements and all provisions of the Principal Lease (mutatis mutandis) shall be deemed to be incorporated in this Lease as though the demised premises were included in the premises demised by the Principal Lease.

This was almost 40 years ago and at the time the owner of the garage was the same as the one of the flat with the (probably subsequently built) roof terrace. A few decades later, the flat (including roof terrace) and the garage belong to different people.

The principal lease only mentions the flat but in the context of the main building not referencing anything about the garage.

I just found a deed of surrender and re-lease (for extending the original flat lease) that references the roof terrace (presumably because it was built after the original lease):

"...the Landlord HEREBY DEMISES unto the Tenant ALL AND SINGULAR the premises comprised and demised by the Original Lease together with the roof garden ("the Roof Terrace") which Roof Terrace is shown in its entirety edged red on the plan annexed hereto and shall include the rear wall (marked by the line A to B on the Plan) of the pitched section of the Garage Premises and one half in depth of the concrete structure of the Roof Terrace and also the air space thereover..."

So I guess that answers it? It's 50-50 for the actual roof repair?

A further complication is that the cost to remove the terrace material to expose the tiles/felt and then reinstating them is likely to be as costly than the repair of the roof itself. You mentioned that the terrace owner should bear this cost. Why would that be, if the sole purpose of doing it is to fix the shared roof structure? Shouldn't the entire cost be shared?

[Qwerty1]

Also further below it says:

The Tenant shall maintain and repair the Roof Terrace and keep it in good working order and condition so as to give shelter and protection to the Garage Premises

So could it be that the above clause (and possible the interpretation of one half in depth being the top half which includes the waterproofing) means that the terrace owner is solely responsible for replacing/repairing the waterproofing?

[ram]

We don't know the type of construction of the original roof of the garage.
We assume it's concrete ?

( one half in depth of the concrete structure of the Roof Terrace )
From above, can we assume the original garage roof was concrete ( the 50% )
And the terrace concrete is the other 50% ?

You have to repair, as required "to give shelter and protection"
Shelter is the concrete roof ( Terrace and garage )
Protection from incoming water, wind, etc. ( for example )

You can have a bus shelter, but there is nothing to stop the rain getting in at the bottom, and it has maybe one - two or 3 sides only. It provides shelter, but not protection.

Looks like any repairs to the roof - "to keep well maintained and in good and substantial repair", is the normal phrase in leases, would be that both leaseholders share the cost equally.

As I said previously,
"depending on the construction"
and gave 2 contradicting answers, to cover us not knowing previously what it says in the lease, nor the type of construction.

[Qwerty1]

The garage roof is concrete with square concrete paving stones on top and a waterproof layer in-between. The terrace is wooden decking sitting about 20cm higher,on resting on poles fixed on the concrete paving stones.

[Lawcruncher]

The combination of:

"...the Landlord HEREBY DEMISES unto the Tenant ALL AND SINGULAR the premises comprised and demised by the Original Lease together with the roof garden ("the Roof Terrace") which Roof Terrace is shown in its entirety edged red on the plan annexed hereto and shall include the rear wall (marked by the line A to B on the Plan) of the pitched section of the Garage Premises and one half in depth of the concrete structure of the Roof Terrace and also the air space thereover..."

and

The Tenant shall maintain and repair the Roof Terrace and keep it in good working order and condition so as to give shelter and protection to the Garage Premises

is clear. The tenant is responsible for the garage roof to one half in depth of the concrete and no more.

Who is responsible for the half of the concrete depends on what the lease of the garage says if the obligation is not imposed on the landlord in the lease which includes the roof terrace.

[Qwerty1]

If one half can be in depth is interpreted literally, it would mean the top 50% of the concrete roof, which includes the waterproofing layer, so that would mean any repair in the waterproofing is solely within the terrace's demise?

Or could it be interpreted as one half in responsibility for the concrete structure treated as a whole, so the costs to repair would be split in half?

[Lawcruncher]

However you look at it, the waterproofing layer is going to come within the demise of the first floor flat.

The draftsman has created a bit of a problem because if the concrete structure (a) develops a defect which extends beyond the demise, or (b) needs to be replaced, the first floor tenant cannot just repair or replace one half in depth.

[Qwerty1]

However you look at it, the waterproofing layer is going to come within the demise of the first floor flat.

Thank you, makes sense

The draftsman has created a bit of a problem because if the concrete structure (a) develops a defect which extends beyond the demise, or (b) needs to be replaced, the first floor tenant cannot just repair or replace one half in depth.

If that were to happen I suppose the cost of the repair would be split? And terrace owner would be responsible for providing access (removing and reinstating the roof terrace)?

[ram]

This is getting long winded.

The garage concrete roof was originally for the garage only.
Along comes someone, leaseholder or freeholder, and looks at garage roof and says, Hmmm, that would make a good terrace.
I am going to use someone else's demised concrete roof, I am going to use their roof for my own pleasure. and put extra weight on it, via heavy flags and / or a timber patio.
Garage owner ( or freeholder ) says, You want to use my roof ? as a support for your terrace, then you pay half the upkeep of the garage roof, ma lad".

We all know concrete cracks, splits, settles, water gets in occasionally, freezes and cracks concrete. This has happened everywhere since concrete was invented.

To make terrace more attractive ( instead of rough concrete, ) flags are laid on top, but because it would then be impossible to see cracks appear, waterproofing was laid on top, under the flags, to lessen the ability of water to enter and freeze, and damage the hidden concrete.

Before the terrace was installed, no waterproof membrane was required, ( assumption ) and is a precaution via the terrace owner ( Builder / Freeholder ) to mitigate damage to the concrete roof, now that it cannot be inspected without removing flags and waterproofing.

All repairs to the concrete roof IS split between both leaseholders.

The garage owner is not concerned what top flat has put over his roof ( except need for waterproofing as above.) It is not his problem, as he did not put anything on top of his roof, therefore he is not responsible for paying to remove and replace anything above his roof line.
The only thing I would compromise on ( myself ) is the waterproofing ( pay half ) so that I would be sure a proper job was done ).

So chew on this over the weekend.

[Qwerty1]

Thank you all.

[Lawcruncher]

If that were to happen I suppose the cost of the repair would be split? And terrace owner would be responsible for providing access (removing and reinstating the roof terrace)?

Whether the cost is split depends on what the garage lease says. If the terms dovetail the lease of the first floor flat then the lower half of the concrete will be in the demise of the garage and an obligation imposed on the tenant to repair it. What we do not know is if the obligation is owed not just to the landlord but also to the tenant of the first floor flat. If the obligation is not also owed to the tenant of the first floor flat then there are two possibilities. One is that the lease allows the tenant of the first floor flat to require the landlord to enforce the covenant the other is that it does not. In the case of the latter the tenant of the first floor flat is going to have a problem if the tenant of the garage declines to cooperate and the landlord stays out of it.

Making the concrete a party structure was probably not a great idea.