Help - Loft Demise - Lease - Trespassing??

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  • Lawcruncher
    replied
    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

    Leave a comment:


  • Mrs Dingle
    replied
    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.

    Leave a comment:


  • Lawcruncher
    replied
    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.

    Leave a comment:


  • Mrs Dingle
    replied
    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.

    Leave a comment:


  • Lawcruncher
    replied
    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.

    Leave a comment:


  • Lawcruncher
    replied
    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.

    Leave a comment:


  • Mrs Dingle
    replied
    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.

    Leave a comment:


  • ram
    replied
    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.

    Leave a comment:


  • Mrmckenzie74
    replied
    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

    Leave a comment:


  • Lawcruncher
    replied
    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.

    Leave a comment:


  • Mrmckenzie74
    replied
    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.

    Leave a comment:


  • Lawcruncher
    replied
    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?

    Leave a comment:


  • Mrmckenzie74
    replied
    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.

    Leave a comment:


  • Mrmckenzie74
    replied
    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.

    Leave a comment:


  • scot22
    replied
    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.

    Leave a comment:

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