Help - Loft Demise - Lease - Trespassing??

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    #16
    What you have posted is the entries on the register at HM Land Registry. What we need to see is the lease dated 29 Spetember 1976.

    Comment


      #17
      Ahh ok... I've just reached out to the solicitors that handled the purchase - for a copy of the lease. They don't have a copy on their system but say they have a copy in archive, so I should be able to get hold of a copy within the next couple of days, in the meantime, I'll dig through my files and see if I have a physical copy.

      Thanks again

      Comment


        #18
        More info on your lease.

        Please remember ( i hear groans from members again for my constant mention of this)

        You buy a lease. You do not buy a flat.---- What ?

        A lease is mandatory on any rental over 21 years. Your lease is a long term rental of the flat you now call yours. The lease is sold to a buyer, to enable the buyer to take over the terms of the lease, and is valid for the remaining years left on the lease since first written.
        This is why you need authorisation to "Assign" a lease to a buyer from the freeholder.

        You paid your £ 100,000 for a lease, not a flat, so you dam well better have those 42 pages ( 21 double sided pages ) in your hand, as that's what you paid for ! ( basically, it's - I have a lease. if you want to live here, hand over £ 100,000 and i'll ask the freeholder if I can assign it over to you )

        Ours are 999 year leases with 940 left, In context, £ 100,000 divided by 940 years = £ 8.86 rent per month.
        Bloody cheap if you ask me - just say, £ 9 per month ( i'll have 10 please ).

        Same with car number plates. I have it, you want it, I'll assign it to you for £ xxxxx ( but that is not a lease, but you get my point.)

        Happy Lease reading.

        Comment


          #19
          The presence of a hatch doesn't give you right to the space above. Its an access point for the freeholder to inspect the interior of the roof if needed and any ariels that might be there.
          Mrs Dingle

          Comment


            #20
            Originally posted by Mrs Dingle View Post
            The presence of a hatch doesn't give you right to the space above. Its an access point for the freeholder to inspect the interior of the roof if needed and any ariels that might be there.
            It is not automatically the case that the loft belongs to a top floor which has exclusive access to it. It depends on what the lease provides. "What the lease provides" is not always just what is written in the lease. Enquiry must be made to establish whether section 62 of the Law of Property Act 1925 applies.

            For convenience I set out the section in full:

            62 General words implied in conveyances.

            (1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.

            (2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof.

            (3) A conveyance of a manor shall be deemed to include and shall by virtue of this Act operate to convey, with the manor, all pastures, feedings, wastes, warrens, commons, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof, fishings, fisheries, fowlings, courts leet, courts baron, and other courts, view of frankpledge and all that to view of frankpledge doth belong, mills, mulctures, customs, tolls, duties, reliefs, heriots, fines, sums of money, amerciaments, waifs, estrays, chief-rents, quitrents, rentscharge, rents seck, rents of assize, fee farm rents, services, royalties jurisdictions, franchises, liberties, privileges, easements, profits, advantages, rights, emoluments, and hereditaments whatsoever, to the manor appertaining or reputed to appertain, or, at the time of conveyance, demised, occupied, or enjoyed with the same, or reputed or known as part, parcel, or member thereof.

            For the purposes of this subsection the right to compensation for manorial incidents on the extinguishment thereof shall be deemed to be a right appertaining to the manor.

            (4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.

            (5) This section shall not be construed as giving to any person a better title to any property, right, or thing in this section mentioned than the title which the conveyance gives to him to the land or manor expressed to be conveyed, or as conveying to him any property, right, or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveying parties.

            (6) This section applies to conveyances made after the thirty-first day of December, eighteen hundred and eighty-one.


            Relevant to the interpretation of section 62 are:

            Section 205 (1)(ii) of the Act:

            “Conveyance” includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will; “convey” has a corresponding meaning; and “disposition” includes a conveyance and also a devise, bequest, or an appointment of property contained in a will; and “dispose of” has a corresponding meaning

            and Section 205 (1)(ix) of the Act:

            “Land” includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land; and “mines and minerals” include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same; and “manor” includes a lordship, and reputed manor or lordship; and “hereditament” means any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir

            We can first see that the section applies to leases because section 205 (1)(ii) says that "conveyance" includes "lease". Any doubt is removed by section 205 (1)(ix) which says land of leasehold tenure is covered.

            Subsection (3) is not relevant to this thread even if some landlords think they are the lord of the manor.

            Subsection (5) confirms that no conveyance can grant a right which the person has no power to grant.

            Subsection (6) indicates that Section 62 has effectively applied since 1st January 1882. It has certainly been in force since 1st January 1926 which is before any conveyancer active today was born. There is no excuse for any conveyancer not to be aware of the section and its effect.

            Before we get to subsections (1) and (2) subsection (4) must be noted. It provides that section 62 does not apply to the extent that the conveyance provides otherwise. It can be wholly disapplied by expressly stating that the section does not apply. It can be wholly or partly disapplied by specifically stating what is excluded. However, it is not specifically disapplied just by setting out in detail what is included. A specific potential application of the subsection can be disapplied impliedly by a contraindication. For example, if the landlord grants the tenant rights to use or access the loft it has to be assumed there was no intention to include it. Equally though, if the landlord reserves rights over the loft it has to implied that it is included.

            Subsection (1) applies to all land whether it has buildings on it or not. We do not need to consider it because anything relevant to an upper storey flat is repeated in subsection (2).

            Subsection (2) is very wide indeed. Unfortunately it does not specifically refer to attics, lofts or roof spaces. However, the tenor of the wording is such that not only lofts, but also balconies and roof terraces, to which a flat has exclusive access must be included. It would be surprising if a cellar accessible from a ground floor flat was included and the roof space accessible from a topmost flat not included.

            "At the time of conveyance" needs to be emphasised. If an access is created after the lease is granted the tenant is going to be in some difficulty arguing his case.

            It is also necessary to stress that in some cases the devil may be in the detail. It cannot be ruled out that someone will come up with an ingenious argument why lofts are not covered by section 62 which a court finds persuasive. However, two things should be borne in mind. One is that if you let a house and do not mention the loft not one will argue that it is not included in the tenancy; why should the position be different when you let a flat? However long the tenancy is should have bearing on the question since (ignoring statutory intervention) the law is the same for all tenancies. The other is that a court has found that a lease can include the airspace above a building.

            If anyone does not find the above persuasive will they please say why.

            Comment


              #21
              Originally posted by ram View Post
              [SIZE=14px]Please remember ( i hear groans from members again for my constant mention of this)

              You buy a lease. You do not buy a flat.---- What ?
              I refer to my comments in post 7 of this thread: https://forums.landlordzone.co.uk/fo...ty-alterations I also started a thread on this very question but I cannot seem to find it.

              Originally posted by ram View Post
              [SIZE=14px]A lease is mandatory on any rental over 21 years.
              What is mandatory is to use a deed if you want to grant a tenancy for a term exceeding three years. When it comes to formalities there is nothing special,about 21 years.

              Originally posted by ram View Post
              [SIZE=14px]This is why you need authorisation to "Assign" a lease to a buyer from the freeholder.
              Consent is only required if the terms of the tenancy so provide.

              Comment


                #22
                Subsection (2) is very wide indeed. Unfortunately it does not specifically refer to attics, lofts or roof spaces. However, the tenor of the wording is such that not only lofts, but also balconies and roof terraces, to which a flat has exclusive access must be included. It would be surprising if a cellar accessible from a ground floor flat was included and the roof space accessible from a topmost flat not included.


                Thank-you for sharing this. Very interesting. A cellar would have a load bearing floor so understandable access but a roof space might not. Usually not, unless it has been converted. My roof spaces are listed in my fire risk assessment and it is forbidden to place anything flammable in there. So whether the demise of this space is part of the flat or not is of no potential to the Leaseholder.
                Mrs Dingle

                Comment


                  #23
                  Originally posted by Mrs Dingle View Post
                  A cellar would have a load bearing floor so understandable access but a roof space might not. Usually not, unless it has been converted. My roof spaces are listed in my fire risk assessment and it is forbidden to place anything flammable in there. So whether the demise of this space is part of the flat or not is of no potential to the Leaseholder.
                  I am not saying that the use of a cellar is on all fours with the use of an attic which has not been converted. What I am saying is that (the lease otherwise being silent) if there is a loft hatch within the flat that the loft is available for use, even if only for storage. It is just as much part and parcel of the flat as the loft is in a house. People tend to think of a loft as something like a cupboard. A loft which can only be accessed from a flat is of no practical use to anyone except the leaseholder.

                  I emphasise exclusive access as indicating the loft as included, but do not insist that the absence of access means it is excluded, though you may have difficulty arguing that something you cannot get to is an advantage.

                  Ideally on every property transaction the client will have a detailed discussion with the conveyancer. Unfortunately, clients do not always tell the conveyancers what they need to know and not all conveyancers ask the questions they should and just produce their standard one-size-fits-all lease for a conversion. The truth in any case where the loft is not dealt with is that no one thought about it including the lessee and the lessee's conveyancer. The thing is though that every conveyancer has to be assumed to be familar with section 62 and a developer cannot argue that he did not mean to include anything included by the section. If the developer had thought about the loft and wanted to exclude it and informed his conveyancer it could have been excluded with a few simple words.

                  Comment


                    #24
                    Lawcruncher,

                    Thank-you. I can see that this is an area that needs clarification at the point of sale. Our lofts contain communal ariels and potentially the need to add more insulation. It can never be regarded as space that a leaseholder has a use of but has access too. I agree with the original poster that something was needed to be done in his case.
                    Mrs Dingle

                    Comment


                      #25
                      Each case needs to be considered according to:

                      (a) what the lease provides

                      and if the lease is silent or inconclusive

                      (b) the layout of the premises

                      (c) the history

                      Comment

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