Tresspass / breach of lease/ own loftspace / compensation

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    Tresspass / breach of lease/ own loftspace / compensation

    URGENT! Help and advice needed please.
    I am the co freeholder of the top floor flat in a 2 flat maisonette.

    My lease includes the loft space. In 2007 I approached by co freeholder (downstairs neighbour) to discuss adding a loft conversion detailing what I wanted to do. In our discussions leading up to me beginning the process of finding contractors/ planning we agreed that I would also take responsibility for the roof as I would be altering it. My co freeholder was briefed and kept abreast of all the plans with the architect, contractors throughout the research process.

    Later that year I approached my co freeholder again with details of the loft plans and the party wall agreement which I requested my co freeholder sign to allow authorisation for me to do the works before I submit the planning permission. I was told by the contractors that this was a requirement before we begin. Please note I believed this was the only written consent I required.

    My co freeholder took it away to review and returned it signed and approved a month later. I gave copies to my contractor who then submitted the planning application. My co freeholder was of course included in the planning process and did not object, planning was approved, the loft was built in 2008 with all necessary sign off and paperwork including the Building control completion certificate. My co freeholder allowed access for scaffolding and major rewiring as part of the build so was fully and intimately aware of everything going on.

    In 2019 my co freeholder approached me to extend the lease on her flat to 999 years. I did not at first see any point to this as we were both co freeholders so a lease of that length effectively nullified the Freehold which seemed pointless to me. Her reasoning was she was unwell and wanted to put her affairs in order and her solicitor suggested she act for both of us. But as I was unsure as to the benefits/motivation for this, instructed my own solicitor requesting that before I agree to anything they review all may paperwork – the freehold / my lease/ declaration of trust / deed of covenant etc to make sure everything was in order before I agree to anything and whether I had to agree.
    On their advice, we went through the process but on my solicitors suggestion had a new lease created. This new lease has been executed.

    My relationship with my co freeholder has been challenging for many years mainly because she has not maintained her property for over 20 years I have lived in mine despite several requests, refuses me access to have works completed and is generally unhelpful and negligent of her property. I have been meticulous about maintaining mine. Last year after once again requesting we paint the front of the building and the difficulty in getting that agreed I informed her that once my property was decorated, I would be putting my flat on the market. I did this in early, got on offer quickly and the problems have escalated since.

    My co freeholder has dragged her feet in signing the LPE1 and the TR1 but has finally done so. Unfortunately even though I thought all my paperwork in place, I have since found in the sales process that I may have unwittingly breached my lease because the signed paperwork I do have is to alter the party wall for the loft and not the roof. My solicitor informed me this was not an issue as a new lease had been issued as a result of my co freeholder requesting a lease extension for 999 years so any prior breaches had been voided due to the new lease. The buyer however wanted the lease to reflect the new property layout so I have requested a deed of variation from my co freeholder to reflect this. The TR1 has already been signed and returned by her through her solicitor which she insisted everything go through.

    She has since instructed a new solicitor, has said I am in breach of my lease, have materially altered the property without her consent, have trespassed into common airspace, will not agree to the variation and she requires compensation, and I cannot sell my property even with the TR1 in place. She also wants me to continue to be solely responsible for the roof.
    My conveyancing solicitor says this is now a litigation issue and not in her experience and that I need to get advice and support from a litigation solicitor specialising in this area.
    The Loft space prior to the conversion was only accessible via my flat through a loft door into the roofspace. I have maintained the roof for 13 years. I followed everything to the letter believing I had all the right consents, and have only found out halfway through the sale I haven’t

    My questions are:
    1. My co freeholder has been aware of the loft conversion for 13 years, signed the party wall agreement, did not object during the planning process and has been happy for me to maintain the roof for the last 13 years. As 13 years have elapsed can my co freeholder still claim trespass and compensation?

    2. We have just gone through the process of issuing and receiving new 999-year leases. Is it the case as my solicitor says that any previous breaches are wiped due to the new lease, especially as my co freeholder has had knowledge of the loft conversion all this time? Can my co freeholder still claim trespass and compensation
    3. Can my co freeholder refuse to sign the deed of variation request with the new layout after signing the TR1?
    4. Is my co freeholder entitled to any compensation from the uplift I have achieved in my property? How would this be calculated.
    5. Her solicitor has said the history is not important and all that is relevant is that I have built into the common airspace so have trepassed and his client requires compensation to sign the Deed of variation.

    I need expert support and advice on this and as I am still in the process of the sale of my flat need this resolved ASAP.

    Can any experts help re my legal standing and advice?

    Thank you in advance.

    Originally posted by Lubyloo View Post
    URGENT! Help and advice needed please.
    My lease includes the loft space.
    Well the above seems the starring point. You say that, and then the rest of your post suggests this is not the case. So what does the lease actually say in words?

    Although some breaches might be nullified by a lease extension, I'm not sure this would extend to ongoing breaches or to appropriation of space that is not yours without compensation.


      How much would your flat have been worth without the loft extension - what is it worth with the loft extension and what did it cost to do the works

      this may give you one of the starting points in you negotiations

      I would then write headed up “without prejudice” and see what she is looking for - clearly they think they can make something out of it - but equally will know that it would cost substantial sums to run a case against you - you need to move on and years of bickering will be a drain on your resources and impinge on your life

      I suspect the weakness in their case is that she has seen you do the work and only now makes an issue of it


        Sorry AndrewDod I wasn't clear my Lease includes the roof space below the roof but none of the structure of the roof itself . The lease says as the joint freeholders of the building and under clause

        " no alteration shall be made in the construction, height, elevation or architectural appearance of the flat or any part thereof nor shall any of the principal walls or timbers thereof be altered or cut, nor any additional or substituted building or erection whatsoever be erected or built upon the demised premises without the licence in writing of the lessor"

        I thought (foolishly I know now), the party wall agreement, their verbal consent and agreement that I maintain the roof, their everything else already above was content, I genuinely thought I had done everything I had to do including all the planning and subsequent sign off.


          sgclacy lacy thanks for this suggestion.


            When u extended the lease and agreed to take on full responsibility for the roof, did u request for the roof to be included as part of ur demise?


              Babyspice I didn't know I had to. As my co freeholder is tricksy I asked my solicitor to check all my paperwork was in order before I agree to the lease extension. They said it was. So I agreed to the extension. I had no idea I had to have my lease changed to reflect the additional space of the loft. If I did I would have of course done that as part of the extension.


                Lawcruncher I would really appreciate your views on my post.


                  There should be no need for a deed of variation. Your solicitor is correct. The new lease replaces the old totally. There can be no question of being in breach of covenant. The new lease, unless perversely worded, must be a lease of the maisonette as it was on the date the new lease began, even if the plan attached shows the wrong layout, because of the operation of section 62(2) of the Law of Property Act 1925:

                  "A conveyance [includes a lease] 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."

                  (The subsection does not apply if a contrary intention is expressed.)

                  The above should cover your situation, but the following applies if it does not:

                  Whilst there are no hard and fast rules with each case depending on its facts, the courts are quite willing to find that a demise can include the column of air above the roof, especially if the lease is for a term off 999 years.

                  Contrary to popular belief, a landlord has no entitlement to an uplift if the tenant improves a property.

                  The works were carried out more than 12 years ago and any right to sue for breach of covenant is now statute barred.

                  If there ever was any trespass the part trespassed on is now part of the demise having regard to the rule in Smirke v Lyndale Developments.

                  Your solicitor sounds like a typical conveyancer who shies away form getting involved in arguments. Tell her to be "bloody, bold and resolute" and make the above points to the other leaseholder's solicitor and threaten to sue for slander of title if the claim is not withdrawn.


                    Lawcruncher I am actually crying with relief. I cant thank you enough for being the first person to be so clear and resolute about my situation. I have been trying to get a straight answer from my solicitor who has been unable or unwilling to give one for weeks. THANK YOU! I will keep you posted on progress!


                      Originally posted by Lubyloo View Post
                      I have been trying to get a straight answer from my solicitor who has been unable or unwilling to give one for weeks.
                      This seems to happen a lot if this forum is anything to go by. It is unacceptable. If a firm takes on a job it is implicit that it has the expertise to deal with it. Now of course any lawyer, however experienced, can come across some point he has not met before. If he does, he needs to grasp the nettle and not dither. If the answer to the problem is not to be found by discussing it with colleagues or doing some research, he needs to tell the client and discuss whether the client should instruct another firm or seek counsel's opinion. Putting the file to the bottom of the pile every day is not the way forward.

                      The issues here are not everyday ones, but neither do they involve arcane points of law. Any firm which accepts leasehold conveyancing ought to have in its ranks someone capable of making most of the points I made in post 9 without doing any research.


                        Thank you Lawcruncher . So to update the conveyancing solicitor categorically refused to get involved as they deemed it a litigation issue (had think about their insurance – that is what they actually said!) and so I had to engage a litigation solicitor.

                        They sent a letter citing the time elapsed (over 12 years), that it was clear my co freeholder was aware of the loft conversion, and had agreed to the new lease (which would relate to the flat as it now existed), and that the failure of the new lease to reflect the new layout as it is today was clearly an oversight. Also as the new lease did not correctly reflect this, it was unreasonable to not consent to the deed of variation to correct this. I offered £500 in recognition of needing the variation signed quickly due to the sale in play.

                        After 2.5 weeks they have responded they are unwilling to agree to ‘rectify’ the lease unless they are paid a sum commensurate with the value added to my flat by the extension, their solicitor saying they were recently involved in a rectification case which led them to believe that we did not have sufficient evidence that we intended the new lease extension be granted to show the loft! When it was pointed out that agreeing the lease was clearly contrary to this, their solicitor then argued my co freeholder had not known the nature of my extension works and this is reflected in the leasehold enquiries form they completed in relation to my sale.

                        Lawcruncher I am effectively being held to ransom - unfairly I believe, as the 'oversight' in the lease extension was not mine, and the co freeholder is not being honest about not knowing about the loft or everything else. I am pursuing this but would really appreciate your perspective on this and whether it is the right thing to do.

                        As ever, thank you for taking the time to read and advise on this. It is very much appreciated.


                          Not sure there is a lot I can add to what I said above. As a matter of law, the new lease replaces the old and includes the premises as they are when the new lease is granted.

                          The situation is a bit tricky because you are effectively arguing that nothing needs to be done. If nothing needs to be done there is nothing you can be held to ransom over. The practicality of course is that the position is not crystal clear in that the lease does not spell everything out and you need to satisfy your purchaser's conveyancer.. A deed of confirmation would remove any doubt but there is no obligation on the landlord to provide it.

                          It is though open to you to apply to the court for an appropriate declaration. I am not sure that rectification is applicable here, but the precise grounds on which you apply has to be a decision for an experienced landlord and tenant litigator.


                            Thank you Lawcruncher .


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