Demise of roof terrace

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  • Demise of roof terrace

    We have the top floor duplex flat in a block in Norwich which is a leasehold block of 3 flats in total.

    We bought our place over 12 years ago and the lease clearly showed access included to a flat roof above our second bedroom. This, together with the fact we were told the leaseholder of the flat was 100% responsible for the roofs (eg we have to pay for any maintenance and repair) by the landlord meant the previous owners had started to use the flat roof as a roof terrace.

    When we moved in we continued with this, making sure the roof was 100% waterproof and had a safety fence around it, plus also a light tiled surface you could walk on so it was safe.

    Now our landlord has found out about this somehow and has started to ask questions about it. We have a lawyer who advises that the fact we have access included on the lease, plus the roof is 'ours', plus the fact it has been used as a roof terrace for over 12 years, means he can't do anything about it.

    However if we want it officially 'demised' though do we need to pay the landlord? We have had a surveyor look at it who does not seem to think there are any problems with it. I'm wondering if we actually need it demised, if he can't stop us from using it?

    Any thoughts appreciated.

  • #2
    Having access to it, presumably to carry out repairs under the lease, is very different to actually using it.

    Is the roof part of your demise in the lease, rather than simply yours to repair. If so unless the lease or the FH title deeds place restrictions on, refer to airspace or restricts its use, then the landlord has no issue.

    There are options on asserting rights and use over it, waiver of a breach if the lease restricts its use, and perhaps you should refer those back to the lawyer from whom you initially took advice as they will be familiar with the situation, rather than rely on generalities and assumptions members have to make.

    He's ignored it for 12 years dont let him take it back!
    Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

    Comment


    • #3
      The roof terrace is not part of the demise according the lease plan, but the lease itself says anything from the floor up in our flat is included in our lease, including all of the roofs which are also ours to maintain and repair. So is it demised really?

      We pay FH no service charge at all, only groundrent and towards building insurance.

      The lease is very general and makes no claims on ownership to airspace over the roof terrace on behalf of the freeholder.

      I have read that its possible to directly claim the roof terrace is included in the lease as part of the 'right of accretion', as we have rights over the roof, have access as per the lease, and can sign a stat declaration to say the roof has been used as a terrace for 12plus years accessed only by us.

      I think we are in a fairly strong position, but want to find the fastest solution, and ideally avoid paying the landlord anything, as he is a money grabbing eedjit. Going the deed of variation route is not great for example.

      Comment


      • #4
        Its worth saying our 'access' is a door clearly marked on the lease going out onto the flat roof. This door is a double patio door ( as was so when we bought the place).

        Comment


        • #5
          Originally posted by lindalove View Post
          The roof terrace is not part of the demise according the lease plan, but the lease itself says anything from the floor up in our flat is included in our lease, including all of the roofs which are also ours to maintain and repair. So is it demised really?

          We pay FH no service charge at all, only groundrent and towards building insurance.

          The lease is very general and makes no claims on ownership to airspace over the roof terrace on behalf of the freeholder.

          I have read that its possible to directly claim the roof terrace is included in the lease as part of the 'right of accretion', as we have rights over the roof, have access as per the lease, and can sign a stat declaration to say the roof has been used as a terrace for 12plus years accessed only by us.

          I think we are in a fairly strong position, but want to find the fastest solution, and ideally avoid paying the landlord anything, as he is a money grabbing eedjit. Going the deed of variation route is not great for example.
          Really need to read to wording of the demise and how it refers to the plan.

          When googling terms like accretion you do need to limit to UK references. It is very common term in the US.

          In this case it is adverse possession and that the period of occupation you are relying on is up to the current date and not 12 years prior to 2002/3, then a ten year period is sufficient to claim. However I hated land law, and you have to take into account the lease, so until Jeffrey or others respond I would be tempted to ask the lawyers instructed earlier
          Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

          Comment


          • #6
            I see my lawyer has in fact clarified that, according to him, the roof terrace is demised as according to the wording of the lease the roof is as much mine as the floorboards as I have lease of the whole flat. He says 'there are no words of limitation' in the lease and I do not need to apply for adverse possession as I 'would be applying for what is already mine'.

            I think that is pretty clear so we're now leaving it to the freeholder to argue or prove otherwise. It would help if we could get this included more clearly on the plan (the plan shows the room below the terrace as being mine, but does not also include a mark around the roof in the plan showing the next floor up, despite it being part of the room below which the lease says is ALL mine). I imagine we'll have to get some agreement to get this to happen (although I imagine I could ask Land Registry directly).

            Comment


            • #7
              Have you thought about buying the freehold of your little block together with the other 2 flat owners ?

              Comment


              • #8
                Originally posted by lindalove View Post
                I see my lawyer has in fact clarified that, according to him, the roof terrace is demised as according to the wording of the lease the roof is as much mine as the floorboards as I have lease of the whole flat. He says 'there are no words of limitation' in the lease and I do not need to apply for adverse possession as I 'would be applying for what is already mine'.

                I think that is pretty clear so we're now leaving it to the freeholder to argue or prove otherwise. It would help if we could get this included more clearly on the plan (the plan shows the room below the terrace as being mine, but does not also include a mark around the roof in the plan showing the next floor up, despite it being part of the room below which the lease says is ALL mine). I imagine we'll have to get some agreement to get this to happen (although I imagine I could ask Land Registry directly).
                Well thats great and I hope the comments made show that they were leading to where the solicitir "had gotten to".

                To quote an old Viz character "get orf moi land" is your response to him, and should he persist you intend to seek an injunction and damages for breach of quiet enjoyment.
                Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                Comment


                • #9
                  Owning the roof's surface is not the same as owning any airspace over it, however. Rights of access to maintain do not affect that.
                  JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                  1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                  2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                  3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                  4. *- Contact info: click on my name (blue-highlight link).

                  Comment


                  • #10
                    yes but if you own a roof normally you would have at least reasonable airspace above it - i think its standard in leases if you own the roof. for example if you decided to add a skylight you would need reasonable righst over airspace in order to ensure you continued to get that light.

                    Comment


                    • #11
                      deed of variation required?

                      Hi we have a leasehold place with a roof terrace which we are now about to sell. We have checked with our lawyer whether the roof terrace is included on our lease which he says 100% adamantly that it is according to the wording as we have no limitations on ownership from the floor up.

                      However our purchasers solicitor does not agree with him and wants I think to get some kind of cast iron certainty on the issue I suppose a deed of variation (even though we do not think a variation is required as there is nothing to vary!?).

                      We can't insure against it as our freeholder knows about the roof terrace, and has sniffed around recently asking questions (we suspect because they have been flagged up to this by our purchaser somehow, probably inadvertently before they knew insurance could cover it). However they have not said anything about it since our lawyer told them clearly the roof terrace belonged to us in his opinion.

                      If our purchasers demand this variation, what should we do? We could find out the cost I suppose of it but our freeholder may well decide to just create a figure out of thin air if he knows we are trying to sell, whereas normally we'd laugh, ignore him due to what our lawyer says about him not having a leg to stand on, allow him if he wanted to to take us tribunal to settle the matter.

                      I am in two minds, as it sounds like our purchasers are being totally risk adverse but at the same time we do want to sell. However, we are not happy about potential high costs and delays brought about by landlord's variation quote, when we do not believe it is neccessary.

                      Our purchaser also wants us to pay for ALL of it despite it being to satisfy their demands.

                      Comment


                      • #12
                        Hasnt this already been covered in the earlier thread?

                        If you and your solicitor are not confident of the position and seek a deed of variation then you are, arguably, conceding your position, leading to your paying money for something you believe, and have been told, that you have.

                        Jeffrey as topic expert in conveyancing will know far better than I as would your solcitor who is advisining you - I hope!
                        Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                        Comment


                        • #13
                          No it wasn't covered as we weren't aware of the purchaser having issue at that time. If we weren't selling we'd tell the freeholder to go jump if they wanted to challenge us as per we agreed in the last thread.

                          If we concede our position by asking for a variation, then, does that leave us open to challenges by the freeholder?

                          I am confused at the moment and cannot see how two lawyers would disagree on something like this. Once of them has to be wrong! Is it worth getting a third opinion by having an expert look at our lease?

                          Comment


                          • #14
                            Its not unusual for advice to differ, where there is scope for interpretation or some doubt, and far more difficult to advise in a forum without knowledge of the property and the lease.

                            I think you are back to the earlier thread and looking at ways of establishing your rights beyond doubt with the freeholder, which I think that your solicitor has advised you on. The purchaser has a choice to accept it as is, or for you to assert your claim or confirm good title with the freeholder, hoping that P waits. One option was claiming possession of the land as posted.

                            I am sure there are other ideas but I would suggest you call your solicitor and ask what options you have to put it beyond doubt.
                            Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                            Comment


                            • #15
                              My lawyer has gone on holiday for a week and I am pulling my hair out.

                              What does it mean to 'make good' on the title or to 'assert my claim?'. Sorry to ask, am just not getting much lateral thought from the purchaser.

                              My lawyer seems to think you can only lay claim to land not formally titled under another name as 'provisions of the 2002 Act are in force' with regards to adverse possession.

                              Comment

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