Does this covenenant clarify the extent of my demise?

[Bengt Lagander]

I own a first floor maisonette the demise refers to "ALL that is the upper maisonette comprising the firs floor and half staircase leading to" and refere to a drawing but does not spell out specifically if the loft and roof are demised in words.

However at Lesseee covenant 5) "From time to time and and at all times during the said term will and substantially to repair uphold and support maintain and keep the demised premises and in particular the roof chimney stacks external walls or other support and protection for the whole of the lower flat and all new buildings which my at any time during the said term be erected on and all additions made to the demised premises"

If I am responsible for roof repair and chimney for benefit of lower maisonette does this give clarity to it being in my demise?

If so, the the landlord needs to argue that lbeit my demise is ALL upper maisonette including the roof that the loft is outside the demise which would seem difficult? thanks

[Babyspice]

I was in a similar situation in the sense that the lease provided a very succinct description of my demise. Luckily for me, the roof was expressly demised to me in words, without referring to the loft space.

when I submitted my request for a loft conversion, the demise (roof and roof space) were not disputed by the FH. He also granted consent to access the airspace above the roof to erect the dormer.

in ur particular situation, who is responsible for insuring the roof and for rebuilding the roof structure in case the house collapses? Ur lease should clearly identify the responsible party.

[Lawcruncher]

I do not think that the fact you are made responsible for the roof as such confirms it is included, but the wording of the clause: "to repair uphold and support maintain and keep the demised premises and in particular the roof chimney stacks..."

[Bengt Lagander]

Thanks for your reply please can you clarify where you say "but the wording of the clause....". what point you are making - apologies I have read a few times but don't quite understand. Many thanks

[Lawcruncher]

Tenants are not usually made responsible for repairing anything which is not in the demise, but is is possible. So, a provision which make a tenant responsible for something does not necessarily imply it comes within the demise.

Here we have a reference to the demise (which coincidentally happens to be in a repair clause) which (as belt and braces to avoid doubt) expands on what the demise includes. It is as if the wording reads: ""to repair uphold and support maintain and keep the demised premises and in particular the following parts of the demised premises: the roof chimney stacks..."

[ram]

"ALL that is the upper maisonette comprising the first floor and half staircase leading to" and refere to a drawing but does not spell out specifically if the loft and roof are demised in words.

Your lease spells out exactly what your demise is.
It refers to the floor plan Drawing, It shows the layout of your demise.
It only shows the flat.
It does not show the loft area.
If no floor plan drawing for the loft area, then the loft and roof are not yours.

Plain and simple.

Your lease does not say you can't go into other flats, but that does not allow you to go in and make yourself at home in other flats with the fish and chips you just brought home, , and consume same there.

Just because something does not mention you cant use it, does not mean you can use it.

Your lease tells you what you CAN use. No one is going to include in a lease Everything you cannot use.

[Lawcruncher]

Post 6 does not reflect practical realities.

A lease plan is a floor plan, that is it only shows the surface space occupied by demised premises. It does not show its upward or downward extent. Conveyancing plans showing the elevation of property are very rare. The purpose of a lease plan (and indeed almost all conveyancing plans) is to identify property and not to show its exact boundaries. The principle is enshrined in section 60 of the Land Registration Act 2002. It is in any event implicit because of the limitation of plans.

In a lease, the plan may be supplemented by a statement of what is included, and indeed, excluded. In that context "included" does not mean "comprises only". Just as no lease plan can accurately show the extent of a demise so no description can cover everything. It also needs to be remembered that developers do not always tell conveyancers what they need to know and conveyancers do not always ask the questions they need to ask. That can result in the developer's conveyancer using a one-size-fits-all lease which the proposed tenant's conveyancer accepts because he too fails to ask the questions he needs to ask.

There needs to be an application of common sense. If the description says the demise includes the plaster of the ceiling and walls and the floorboards and joists on which they rest, there is no need to say that it includes the space enclosed by the walls, ceiling and floor. As at least a rule of thumb, the principle has to extend to anything accessible from a flat and which a reasonable person would say is part of the flat, such as a cellar, balcony or loft. There is though no need to conjure up any such rule as statute rides to the rescue with section 62 of the Law of Property Act 1925.

Section 62 has in fact been around since 1st January 1882 since its operative provisions are word for word the same as section 6 of the Conveyancing Act 1881. Parliament has not seen the need to amend the wording by even one word. There are two important things about section 62. The first is that it is a word saving provision. That means that, except to the extent that the section is excluded, its wording is deemed included in every lease (and of course other property documents). The second is that the effect of the section is very wide ranging.

The courts have been willing to hold that demises of the top part of buildings which do not refer to roof spaces in fact include them; in some cases they have gone so far as to say that the column of air above the roof is also included.

All this means that when you want to know the extent of the demise of a flat or maisonette you cannot necessarily go by the wording you see in the lease in the words of demise or any lease plan. You need to take into account section 62 and other provisions in the lease which may indicate one way or another whether something is included or excluded.

[Gordon999]

Basically the living space/area behind the flat entrance door is your demised area under the lease. You can be made responsible for maintenance of the drain pipes outside the flat under the lease , but you cannot occupy the pipes and not part of your demise.

In most leases, the leaseholders are responsible for maintenance of the communal areas but such areas are not demised to any flat..