Help - Loft Demise - Lease - Trespassing??

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    Help - Loft Demise - Lease - Trespassing??

    Hi all!

    Hope you're all well?

    I'm new here so I hope you don't mind my direct approach.
    I may be in a bit of a pickle and could really do with a bit of advice on the following...

    Snap shot:

    Top floor flat

    Purpose built maisonettes

    2 Storeys high (we occupy a flat on the 2nd storey) with a pitched roof.

    Over 900 years left on the lease

    £50 per year for ground rent

    Loft space sits directly above the property

    Only accessible through the hatch in our property

    Loft not mentioned on the lease.


    The situation:

    We have been living in the property for almost 3 years now and decided to get some works done on the property. Upon reaching out to builders for quotes and scope of works, we were informed that the ceiling was bowing in a few places and upon investigation found that the water tank loftwas resting on the joists and the space had been used as storage by the previous owner and they had failed to remove their heaps of old mouldy belongings, which was now having an impact on the ceiling joists and our ceiling due to the weight.

    Upon realising the size of the loft, one builder suggested this could be boarded out and used as a great storage space or even an additional room (with required consent and planning).

    We reached out to the freeholder - as there was no explicit mention of the loft in the lease - who responded saying that the Demise of the loft is not a part of the lease... I but is open to the idea of selling or granting permission for use in the space following application.

    As a part of the application process, we engaged a structural engineer and architect for drawings and calculations (funded by ourselves), quotes from builders and had previously discussed the idea with 3 local estate agents when having the flat valued - who advised against it as an investment, as the added cost will outweigh the financial gain. For us, as a growing family, this is for comfort not than financial gain.

    Now...
    ​​​​​​
    We have:

    Submitted drawings to the freeholders

    Submitted a planning application to the Local Authority for a dormer - awaiting decision

    Engaged building control

    Upgraded the joists as per the engineers calculations

    Repaired the bowed ceilings

    Re-insulated between the joists

    Insulated between the roof rafters

    Overboarded the rafters with plasterboard

    Boarded over the joists with chipboard.


    Note: this is not a livable space - there are no windows in the loft - current use is for storage until we have acquired the space and received planning permission at which point a dormer would be added and the space turned into a room.


    Essentially, we have tried to kill two birds with one stone. Solve our ceiling issues whilst beefing up the joists to take the weight of a new floor... then proceeded to insulate the space as best we could.

    Building control have inspected and granted approval of works.

    The good bit...

    Freeholder is now threatening legal action at at my cost because apparently we have trespassed without permission and altered their loft space.

    I'd appreciate (if possible) some advice on where I stand and what path I could / should take to remedy this situation.

    I'm fully aware that there is likely to be a cost attached to the purchase of the loft space... And I'm not running from that.
    I'd just like to know if we're are in actual breach of lease and have trespassed and what could be done to rectify the situation.

    Lease details can be supplied if you'd like to have a look.

    Thanks for reading this far.

    Mrmckenzie

    #2
    First reading I think you have behaved very well. All actions have been based on qualified professional advice and you have sought necessary approval.
    you have carried out essential repairs at your own expense.
    Not sure what he can sue you for, repairing the property to a high standard ? Any payment should reflect increase in value after the work, you have evidence there isn't any !
    Threatens legal action, decides it is at your expense. If he actually consults a solicitor it will cost him money. It is the court which awards costs.
    I don't see he has any case.

    Comment


      #3
      Cheers scot22 ,

      Appreciate the response!

      Indeed, we have acted in the best possible manner.
      No guess work, no cutting corners, all works carried out to the highest of standards.

      ​​​​​​Another thing mentioned by the freeholder was that they would be instructing a surveyor to visit the property - which I have absolutely no issue with, however there's a mention that is need to pay for the surveyors costs.

      Again if this is correct, I have no issues in paying for this if I need to but it just doesn't feel right that I'm to bear the cost.

      Comment


        #4
        I've had a look around this forum and have seen Lawcruncher mention the possibility of the space belonging to the freeholder if the only access to the space is via the hatch in the loft.

        Could anyone shed a little more light on this, I'd love to dig in to this further please?

        Comment


          #5
          Originally posted by Mrmckenzie74 View Post
          I've had a look around this forum and have seen Lawcruncher mention the possibility of the space belonging to the freeholder if the only access to the space is via the hatch in the loft.

          Could anyone shed a little more light on this, I'd love to dig in to this further please?
          Are you sure on above, as Lawcruncher usually says if the hatch is in your flat, the loft belongs to you ( which I always disagree with.)
          Regarding a hatch in your ceiling - where else can it be put. Build a staircase on the outside with a door at the top on the side ?. No, access to the loft is always in the top floor.

          Your lease will not mention what you do not own, as that would be pointless and run into many pages.
          A lease tells you what you own ( demised ), so why should it mention the loft if it is not demised to you.

          Yes, you have trespassed,
          First you should have instructed the freeholder to repair the sagging joists, and addressed the water tank etc, and it is nearly always the freeholders responsibility to fix these ( without me seeing your lease )

          You have carried out work that would be classed as having already started to convert the loft, new joists, chipboard, plaster, insulation, and all without permission. The freeholder has no option but to charge you with trespass. I would have done the same ( charge you with trespass ).

          As far as he is concerned, it is evident that you are halfway through converting the loft without permission, and has to make sure you cease immediately, hence the trespass charge.

          I would write and apologise, and state that all work has now ceased due to your misunderstanding of the lease, apologise for starting the conversion, and you are new to the leasehold requirements which you inadvertently started, and that you again apologise for your lack of knowlege and trust you can now discuss his kind offer to consider adding the loft to your demise.

          Note. Building control approval does not over ride the lease.

          Comment


            #6
            I would not disagree with ram who is far more knowledgeable and experienced than me. I still believe that you did needed work. Perhaps you acted too independently, as a leaseholder, to get it done. You will have to pay for the surveyor.
            I would follow ram s advice and hope for cooperation. Good communication is always essential.

            Comment


              #7
              Originally posted by Mrmckenzie74 View Post
              I've had a look around this forum and have seen Lawcruncher mention the possibility of the space belonging to the freeholder if the only access to the space is via the hatch in the loft.

              Could anyone shed a little more light on this, I'd love to dig in to this further please?
              I assume you mean "possibility of the space belonging to the leaseholder".

              The key point is this: What a lease says is not just the words set out in the document, but also the words added by section 62 of the Law of Property Act 1925 except to the extent that the lease provides to the contrary. The effect of the section can sometimes be unexpected, but it also ensures that much that may otherwise be overlooked is covered. That does not mean that there are no traps for the unwary. ideally, every conveyancing transaction will include an enquiry into what is included and excluded, whether land or rights, and the documents drawn up accordingly.

              Before you negotiate with the freeholder you need to know where you stand both as to whether the loft is included and as to what alterations are permitted.

              Comment


                #8
                Pleased to see launcher contributing to this thread. You are fortunate.

                Comment


                  #9
                  "you need to know where you stand both as to whether the loft is included and as to what alterations are permitted."

                  All of this will be in your lease.
                  The freeholder ( Lessor ) is responsible for and owns this and that, e.g, the outside walls, the roof,( + loft space usually ) the driveway, boundary walls, drains from the outside of the property including underground drains, an the list goes on. Although collectively all the leaseholders contribute to these repairs.

                  The lessee ( Leaseholder ) owns ( leased from freeholder ) that which is described ( with floor plan of the flat ) and if loft included- will say so, should show a plan of the area of the loft. A loft will not, or should not include the roof timbers and exterior covering, as that protects ALL leaseholders, and if a leaseholder is given a common item that protects all, and if he cant afford to replace or maintain it, those consequences are bound to be a long court case while the flats turn into swimming pools.

                  But beware, all these items are not in the same place, and not under the same heading, so read it all. + make notes,

                  Comment


                    #10
                    ​​​​Are you sure on above, as Lawcruncher usually says if the hatch is in your flat, the loft belongs to you ( which I always disagree with.)

                    - Apologies, I said freeholder instead of leaseholder...

                    Regarding a hatch in your ceiling - where else can it be put. Build a staircase on the outside with a door at the top on the side ?. No, access to the loft is always in the top floor.

                    - granted! I was simply making reference to a part I had seen by another member on the forum, which - To me - screams "LOGIC", which is why I raised the question for more info.

                    I'm grateful for your response though, as it helps me see the other side of the coin so thanks.

                    Clearly, leases aren't always logical...

                    I'm keen to collaborate with the freeholder... I have no intention or appetite to wind anyone up (further). I have made this clear in a written response to the freeholder.

                    scot22 would it help to have my own survey done or is it likely that we could agree on an independent surveyor. Just to ensure we get an impartial view?? And sorry to sound naive, but what is the surveyor supposed to feed back in such a case, that building control and the engineers haven't already addressed?

                    Again just asking for a better understanding.

                    Lawcruncher, thanks for the response. I won't pretend that I'm clued up enough to understand the wording of section 62... But I'll follow up with the lease details for further information - if you could take a look a share your views, I'd be massively grateful as I too would like to know where I stand.

                    Thanks for your time, all

                    Comment


                      #11
                      Without wishing to sound pompous or patronising I think you have an excellent attitude. I agree that an additional survey is probably unnecessary after the other checks. However, in reality, I expect the lease decrees a survey is required. Unfortunately the world of leasehold can be rather strange and frustrating. I suspect the lease will entitle the freeholder to appoint and lease holder to pay.
                      Do keep your good communication in place. That should lead to a satisfactory outcome.

                      Comment


                        #12
                        scot22 Lawcruncher ram

                        As promised, please see the lease details below.
                        I look forward to hearing your views.

                        Thanks again!


                        A: Property Register
                        This register describes the land and estate comprised in
                        the title. Except as mentioned below, the title includes
                        any legal easements granted by the registered lease but
                        is subject to any rights that it reserves, so far as
                        those easements and rights exist and benefit or affect
                        the registered land.

                        1 (21.01.1977) The Leasehold land shown and tinted pink, blue and yellow
                        on the plan of the above title filed at the Registry known as ...
                        NOTE: As to the part tinted blue on the filed plan only the first floor maisonette is included in the title.

                        2 (21.01.1977) Short particulars of the lease(s) (or under-lease(s))
                        under which the land is held:
                        Date : 29 November 1976
                        Term : 999 years from 25 December 1966
                        Rent : £25
                        Parties :

                        3 Unless otherwise mentioned the title includes any legal easements granted by the registered lease(s) but is subject to any rights that it reserves, so far as those easements and rights exist and benefit or affect the registered land.

                        4 The lessor's title is registered.

                        B: Proprietorship Register
                        This register specifies the class of title and
                        identifies the owner. It contains any entries that
                        affect the right of disposal.
                        Title absolute

                        1 RESTRICTION: No disposition by a sole proprietor of the
                        registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.

                        C: Charges Register
                        This register contains any charges and other matters
                        that affect the land.

                        1 The freehold estate in the land in this title is with other land,
                        registered subject to the restrictive covenants contained in a Deed
                        dated 31 December 1879 made between (1) and (2) the
                        several other persons who set their lands and seals thereto so far as
                        said covenants are still enforceable. No details were supplied on
                        first registration

                        2 A Conveyance of the freehold estate in the land tinted pink on the
                        filed plan and other land dated... made between (1)
                        (2)
                        (3)
                        contains covenants details of which are set out in the
                        schedule of restrictive covenants hereto.
                        3 REGISTERED CHARGE dated...
                        4 Proprietor:
                        5 The proprietor of the Charge dated... referred
                        to above is under an obligation to make further advances.
                        These advances will have priority to the extent afforded by section 49(3)
                        Land Registration Act 2002.

                        Schedule of restrictive covenants

                        1 The following are details of the covenants contained in the Conveyance
                        dated 21 July 1891 referred to in the Charges Register:-

                        COVENANT by said...
                        serve and perform the provisions and stipulations on the part of the Purchasers set out in the 2nd Schedule thereto PROVISO that such covenant should not be binding personally the intention being that such covenant should run with the land and as far as possible be binding only on said premises into whomsoever hands the same might come and the owners and occupiers for the time being thereof.

                        THE SECOND SCHEDULE ABOVE REFERRED TO
                        CONDITIONS AND STIPULATIONS

                        1. The Purchaers shall pay a proportionate part of the expenses of keeping the drains and sewers belonging to the said premises in common
                        with the Purchasers of the adjoining property part of the... Estate aforesaid and of the footpaths and roadways in front of adjoining or near to the said premises hereby assured in good repair
                        and condition until such drains sewers pathways and roadways shall be accepted by the Urban Sanitary Authority and shall provide and lay out
                        such flag and other paving thereto as the said Urban Sanitary Authority shall require.

                        2. The purchaesrs shall not cut down or fell any of the trees on the said premises without the consent of the said... his heirs or assigns first obtained.

                        3. Waterworks having been erected upon the said Estate the Purchasers shall take therefrom the supply of water required for the said premises
                        hereby conveyed so long as such supply shall be furnished of good quality and in sufficient quantity for use but during such time only as
                        the same premises shall be occupied and shall pay the said... his heirs or assigns or the Owner for the time being of the said Waterworks for such supply after the rate of One shilling in the pound on the gross estimated rental value of the said premises hereby conveyed as specified in the Poor Rate Book of the Parish of...
                        with Ten shillings per annum extra for every bath in any house or building erected on the same premises and such sum as may be agreed
                        upon for the use of any hose for garden and stabling purposes.

                        4. The Purchaers shall permit the said... his heirs or assaigns or the Owner for the time being of the said Waterworks and their Surveyors and workmen and others by their owner at all seasonable times to enter on the said premises and inspect the conditions of the water apparatus appertaining thereto and leave upon the premises notice in writing for the reparation of any defects or wants of repair and the Purchaers their heirs or assigns shall make good and repair such
                        defects and wants of repair immediately upon receipt of such notice and in default thereof the said... his heirs or assigns or the Owner for the time being of the said Waterworks shall be at liberty so to do and to change the Purchasers their heirs or assigns with the costs thereof and in case of non-payment may recover the amount from them as liquidated damages.

                        5. The Purchaers their heirs or assigns shall not at any time use or permit or suffer the premises hereby conveyed or any house or building
                        to be erected thereon to be used for any trade or business whatseover or for a School or Educational Establishment or Lodginghouse or
                        Boardinghouse or for any Institution or as a public or private Lunatic Asylum or for keeping people of unsound mind and shall keep and use the same for or as a private dwellinghouse or an adjunct to a private house only.

                        6. The Purchasers shall not set up use or do upon any part of the premises hereby conveyed anything which shall or may be noxioous noisy
                        or offensive or be any interruption or annoyance to the said... or the owners tenants or occupiers of any part of the... Estate aforesaid or any houses or buildings thereon or of the property
                        adjoining or near thereto.

                        Comment


                          #13
                          scot22 thanks again!

                          I respect you guys massively for taking the time to look a my screw-up.

                          I'm new to this stuff but I'm fully aware that the mark may have been overstepped slightly here.

                          If I'm wrong... I'm wrong and I'll do what needs doing to put things right... Really not in the habit of winding people up especially people you're tied to through a lease.

                          Comment


                            #14
                            Originally posted by Mrmckenzie74 View Post
                            ​​​​I'll follow up with the lease details for further information
                            Do that. Ideally I need to see the whole lease to check if there is any relevant detail tucked away somewhere. Perhaps you can scan it?

                            Comment


                              #15
                              Lawcruncher

                              A: Property Register
                              This register describes the land and estate comprised in
                              the title. Except as mentioned below, the title includes
                              any legal easements granted by the registered lease but
                              is subject to any rights that it reserves, so far as
                              those easements and rights exist and benefit or affect
                              the registered land.

                              1 (21.01.1977) The Leasehold land shown and tinted pink, blue and yellow
                              on the plan of the above title filed at the Registry known as ...
                              NOTE: As to the part tinted blue on the filed plan only the first floor maisonette is included in the title.

                              2 (21.01.1977) Short particulars of the lease(s) (or under-lease(s))
                              under which the land is held:
                              Date : 29 November 1976
                              Term : 999 years from 25 December 1966
                              Rent : £25
                              Parties :

                              3 Unless otherwise mentioned the title includes any legal easements granted by the registered lease(s) but is subject to any rights that it
                              reserves, so far as those easements and rights exist and benefit or affect the registered land.

                              4 The lessor's title is registered.

                              B: Proprietorship Register
                              This register specifies the class of title and
                              identifies the owner. It contains any entries that
                              affect the right of disposal.
                              Title absolute

                              1 RESTRICTION: No disposition by a sole proprietor of the
                              registered estate (except a trust corporation) under which capital
                              money arises is to be registered unless authorised by an order of the
                              court.

                              C: Charges Register
                              This register contains any charges and other matters
                              that affect the land.

                              1 The freehold estate in the land in this title is with other land,
                              registered subject to the restrictive covenants contained in a Deed
                              dated 31 December 1879 made between (1) and (2) the
                              several other persons who set their lands and seals thereto so far as
                              said covenants are still enforceable. No details were supplied on
                              first registration

                              2 A Conveyance of the freehold estate in the land tinted pink on the
                              filed plan and other land dated... made between (1)
                              (2)
                              (3)
                              contains covenants details of which are set out in the
                              schedule of restrictive covenants hereto.
                              3 REGISTERED CHARGE dated...
                              4 Proprietor:
                              5 The proprietor of the Charge dated... referred
                              to above is under an obligation to make further advances.
                              These advances will have priority to the extent afforded by section 49(3)
                              Land Registration Act 2002.

                              Schedule of restrictive covenants

                              1 The following are details of the covenants contained in the Conveyance
                              dated 21 July 1891 referred to in the Charges Register:-

                              COVENANT by said...
                              serve and perform the provisions and stipulations on the part of the Purchasers set out in the 2nd Schedule thereto PROVISO that such covenant should not be binding personally the intention being that such covenant should run with the land and as far as possible be binding only on said premises into whomsoever hands the same might come and the owners and occupiers for the time being thereof.

                              THE SECOND SCHEDULE ABOVE REFERRED TO
                              CONDITIONS AND STIPULATIONS

                              1. The Purchaers shall pay a proportionate part of the expenses of keeping the drains and sewers belonging to the said premises in common
                              with the Purchasers of the adjoining property part of the... Estate aforesaid and of the footpaths and roadways in front of adjoining or near to the said premises hereby assured in good repair
                              and condition until such drains sewers pathways and roadways shall be accepted by the Urban Sanitary Authority and shall provide and lay out
                              such flag and other paving thereto as the said Urban Sanitary Authority shall require.

                              2. The purchaesrs shall not cut down or fell any of the trees on the said premises without the consent of the said... his heirs or assigns first obtained.

                              3. Waterworks having been erected upon the said Estate the Purchasers shall take therefrom the supply of water required for the said premises
                              hereby conveyed so long as such supply shall be furnished of good quality and in sufficient quantity for use but during such time only as
                              the same premises shall be occupied and shall pay the said... his heirs or assigns or the Owner for the time being of the said Waterworks for such supply after the rate of One shilling in the pound on the gross estimated rental value of the said premises hereby conveyed as specified in the Poor Rate Book of the Parish of...
                              with Ten shillings per annum extra for every bath in any house or building erected on the same premises and such sum as may be agreed
                              upon for the use of any hose for garden and stabling purposes.

                              4. The Purchaers shall permit the said... his heirs or assaigns or the Owner for the time being of the said Waterworks and their Surveyors and workmen and others by their owner at all seasonable times to enter on the said premises and inspect the conditions of the water apparatus appertaining thereto and leave upon the premises notice in writing for the reparation of any defects or wants of repair and the Purchaers their heirs or assigns shall make good and repair such
                              defects and wants of repair immediately upon receipt of such notice and in default thereof the said... his heirs or assigns or the Owner for the time being of the said Waterworks shall be at liberty so to do and to change the Purchasers their heirs or assigns with the costs thereof and in case of non-payment may recover the amount from them as liquidated damages.

                              5. The Purchaers their heirs or assigns shall not at any time use or permit or suffer the premises hereby conveyed or any house or building
                              to be erected thereon to be used for any trade or business whatseover or for a School or Educational Establishment or Lodginghouse or
                              Boardinghouse or for any Institution or as a public or private Lunatic Asylum or for keeping people of unsound mind and shall keep and use the same for or as a private dwellinghouse or an adjunct to a private house only.

                              6. The Purchasers shall not set up use or do upon any part of the premises hereby conveyed anything which shall or may be noxioous noisy
                              or offensive or be any interruption or annoyance to the said... or the owners tenants or occupiers of any part of the... Estate aforesaid or any houses or buildings thereon or of the property
                              adjoining or near thereto.

                              Comment

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