Loft access rights

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    Loft access rights

    Hi. I'm a first time poster.

    I am looking to buy a top-floor flat (100y lease) in an 80s block. It has access to a self-contained loft space via a hatch within the flat. I understand that all of the top-floor flats have their own loft spaces in this way.

    My loft space is not in use (just joists and insulation), but I had been planning to install flooring and a ladder to use it as storage space.

    However, my solicitors have discovered that planning permission has been granted to the freeholder to do in effect a loft conversion of the entire block. This means the flat will lose its loft space. It also means the flat will have a building site over it for the next 6-12 months, which I am not at all happy about.

    I checked the lease. There is no mention either for or against the flat's ownership of the loft space.

    I spoke to one resident who has owned the lease on his flat since the block was first put up. He says the freeholder told him the loft space was a "bonus" that was never included in the lease and therefore never legally his. The resident also told me that the freeholder only bought the freehold in the last 10 years.

    If I buy the flat, can I register an interest in the loft space as part of my lease and then block the loft conversion? NB, the building work is scheduled to begin at the end of February already.

    I saw reference to Smirke v Lyndale Developments Ltd on another thread. Is that case relevant here?

    #2
    You cannot 'lose' what you never had. As the loft is not within the lease, L can do whatever L wants- subject only to any easements (private access rights) conferred by the lease. So it sounds like L is right in what he said.
    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


      #3
      On the other hand a 1980's block has a roof which is likely to be in need of work in the forseeable future. Addition means that cost, and the offputting nature of such a high cost to a future owner seeking a price reduction, is removed from you.
      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


        #4
        Originally posted by jeffrey View Post
        You cannot 'lose' what you never had.
        My understanding was that if a leaseholder had been occupying unchallenged for a period of 12 years part of a property that is outside the terms of his lease, the leaseholder can add that occupied part to his lease. Is this not correct?

        NB, the other resident I spoke to has been occupying his flat for over 20 years, and using the loft space throughout. Now he is going to lose his loft space as well.

        Comment


          #5
          Nope. A leaseholder will find it remarkably hard to set-up adverse possession against the reversioner.
          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


            #6
            A leaseholder of the flat below the roof space who has lived there for some time does in my view deserve some sympathy that a flat will be put on top of him.

            But a purchaser who buys a flat knowing all this could potentially happen in the next few months can hardly feel hard done by.The objections you would make would seem rather groundless as the price you would have paid for the flat will reflect all this.

            The landlord has a right to continue to develop the property subject to planning and provided it does not take away rights granted in the lease

            Comment


              #7
              I'm not really looking for sympathy, just answers.

              As it happens, I have been in touch with one of the other leaseholders, who has been resident (and using his loft space) for over 20 years. Whether or not I end up becoming his neighbour, I certainly intend to help him out.

              Anyway, I have been advised elsewhere that Smirk v Lyndale does establish that the leaseholder can claim equivalent leasehold title to unleased land (incl loft space) that they have been occupying unchallenged for 12 or more years. And it doesn't matter if the lease has changed hands during that period.

              The building work came as a nasty shock after my offer had already been accepted on the flat. As the vendor is unwilling to renegotiate, it is good to know I may instead be able to demand compensation from the freeholder for the loss of the loft space (which seems the more fair outcome anyway).

              It is also good to know that I may be able to block the building work if I am unsatisfied that it will be carried out properly and with minimum disruption.

              Comment

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