Another Loft question

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    Another Loft question

    I am the freeholderof a house split in to two flats, I also own the ground floor flat. the leaseholder upstairs wishes to convert the loft.The upstairs Lease states that the demise includes all that is the first floor and the roof, my solicitor is certain that they do not own the loft space as it is silent on the lease and not included in the 1st floor plans. he tells me that the roof space would have been used for water tanks etc at some point and is therefore not owned by either leaseholder and therefore reverts to the freeholder. I have read similar questions on this site and the answer has been that roof equals loft space. If this is a grey area how is it decided?

    #2
    Another Loft question
    and another person who hasn't read the sticky.... http://www.landlordzone.co.uk/forums...rges-SC-and-GR
    part F.

    it is a matter of reading the LPA 1925 ( full kudos to lawcruncher) and the lease side by side.

    You agree by mediation arbitration or litigation.
    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
      OK you've got me, I neglected to read the sticky. I have now read it and it sort of swings in my favour but the many posts on this topic seem to conflict with each other. Some advice points to the fact that the inclusion of the roof would logically mean that the roof space was also included whereas other advice states that roof means just the roof and if loft space was included then the lease would say "loft space" The sticky states that most leases ar are eggshell and therefore the inclusion of wall and roofs does not necesarily include what is contained within them. Below is a post from this forum which would suggest that this is the case

      jeffrey08-09-2010, 10:29 AM
      This has me thinking regarding my lease. I am planning to do a loft conversion next year.

      My lease states I am allocated the ground, first floor and the roof. The floor plans attached to the lease only has the ground floor and 1st floor and does not included the 2nd floor loft.

      So, does roof simply mean the roof itself or, does it include the roof space??
      'Roof' is just the roof. The loft-space (attic) is not included unless the Deed's contents or the plans say so.

      .

      Comment


        #4
        I would say it means the roof itself and not roof space but I'm sure LHA will correct if I am wrong.



        Freedom at the point of zero............

        Comment


          #5
          Thanks for the respons and I hope that you are right. I'm sure the leaseholders solicitor will have a different view and then the fun will begin

          Comment


            #6
            The other posts are not contradictory( unless of course there is a disagreement). What they all have in common is that when considering what is your and isn't, it a lease, and leases vary, and is one reason as lawcruncher explains why the LPA 1925 exists to "fill in the blanks"( every conveyancing solicitor has just cringed )

            A description and red line might indicate that the rectangle of your flat has a triangle on top and that is what you own, but might reserve rights over the triangle or preclude its use for anything, or just, for example storage or tv aerials and tanks.
            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


              #7
              Where the description of a top floor flat includes the roof and is not further elaborated, I think you are going to have difficulty persuading a court that the roof space is excluded.

              Comment


                #8
                Ok what I dont understand is this, If the LPA 1925 fills in the blanks why would anyone ever need to go to court? doesn't it eliminate any doubt either way?

                Comment


                  #9
                  Only where there are blanks to fill.

                  1 The lease has to be read and understood as to what is yours and what is not and where it is unclear
                  2 The Act can help.

                  That doesn't preclude the other side from arguing and the court being asked to determine the matter.

                  So, does roof simply mean the roof itself or, does it include the roof space??
                  'Roof' is just the roof. The loft-space (attic) is not included unless the Deed's contents or the plans say so.
                  The answer to that question is therefore a contextual one as to what the lease says. It could be read and understood to include the loft space and that as said might be subject to restrictions or rights, but on the other hand it might state roof in such away as simply including the roof as a covering and structure and not the space in between.

                  The purpose of the Act in one respect, is to set out a position that such disputes might arrive at, that such spaces are to be included in a demise. The counter argument is that that isn't what the lease says and a Judge has to make sense of it.

                  What you do is ask your solicitor to send it off to counsel for an opinion.
                  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


                    #10
                    Originally posted by spur99 View Post
                    Ok what I dont understand is this, If the LPA 1925 fills in the blanks why would anyone ever need to go to court? doesn't it eliminate any doubt either way?
                    Section 62 was drafted as a word saving section. Its broad effect may be summarised as follows:

                    (a) If something is expressly excluded it is excluded.

                    (b) If something is not expressly excluded it may be included.

                    The section is very broadly drafted because it is not possible to provide for every possible situation. It acknowledges that in the real world conveyancers are not always told everything they need to know to produce a document which covers everything. Since not every situation is covered precisely it inevitably follows that doubt cannot be eliminated.

                    When it comes to the case of a traditionally built dwelling with no unusual features converted into flats with only one flat per floor, I think the assumption has to be that it consists of floors and nothing but floors. This means (absent of course anything in the lease to the contrary) that the top floor flat is going to include the roof and roof space and the bottom floor flat is going to include any cellar, especially if access to the roof space or cellar is exclusively from the flat. If a top floor flat is described as including the roof that does not do anything other than confirm the position. Accordingly, I do not think it is going to be possible to argue (absent of course anything in the lease to the contrary) that specifically including the roof implies that the roof space is excluded. We can also ask precisely what is meant by "roof". Whilst the basic definition may be that it is the covering of a building, I think that it can also mean something a bit vaguer and refer to the top part of a building. If someone says: "Your Uncle Fred is up in the roof" it does not sound odd.

                    Comment


                      #11
                      I am disagreeing with lawcruncher. My concern as before is that some may conclude that if the lease does not actually say " the roof or loft or cellar is not yours, do not go in there, no, not ever" then they scream "yippee, a building we will go" and set of for B & Q.

                      While if it did that would be most helpful for everyone, the express exclusion may be in a lot of words in several places, a description and a plan, all of which once considered exclude these areas by clearly stating what is yours and yours alone. A comprehensive description of a top floor flat with a rectangular plan and description of ceilings etc would be difficult to interpret as extending upward, or for cellars, floors and descending downwards.

                      Reservations of floor timbers and walls etc in a lease may also in practical terms prevent any alterations, as in the case above where the airspace might be regarded as included as "in the roof", but reserving the structure or joists might mean that they are not your to later and therefore they cannot be increased in size or removed and rearranged to open the space for useful conversion. At best its place to put your train set.

                      The mere presence of access can be a short cut in conversion, a legacy, a means to exercise rights over or to it, or a vague afterthought that "we might need to get in there one day, lets just leave it", and forget to tell the lawyers to put that into words and the lease. While no formal right to get to the door might exist, when it comes to repairing plumbing utilities or the damp course, or eliminating the mice, few would refuse access, and appreciate not having the expense of creating an access.

                      That said don't let that dissuade you or anyone from taking the lease and lawcruncher's posts off to counsel for an opinion, just remember that it might lumber you with an expensive roof repair bill and you will pay more for revaluing the declared value for insurance and paying more service charge and insurance premium

                      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


                        #12
                        I am not sure that LHA and I are in fact in disagreement.

                        Confining ourselves to leasehold flats, we need to distinguish between:

                        (a) Whether areas such as lofts, cellars, staircases, balconies and roof terraces are included as part of the property.

                        (b) Whether the tenant is responsible for the maintenance of such areas either directly or indirectly through a service charge.

                        (c) What use the tenant may make of such areas.

                        The lease will (or at least ought to) regulate (b) and (c). However, with (a), which is what we are concerned with in this thread, it is not so straightforward.

                        LHA is of course right that a tenant should not rely on a quick look at the lease and is also right to stress that, if it is concluded that the area in dispute is included, it does not follow that the tenant has carte blanche to do what he wants with it.

                        Concentrating solely on (a):

                        It is important to note the way section 62(2) is drafted. This what the sub-section says:

                        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.

                        The words in red are significant. They mean (subject to section 62(4)) that whatever you say in your conveyance (which remember includes a lease) all the things listed are included - note: not implied, but included. Accordingly, a detailed description of the extent of a flat, without more, is not enough to exclude the operation of the sub-section. Certainty of exclusion can be achieved by clear words excluding the operation of section 62 or clear words excluding the area in question.

                        In the absence of clarity two steps are needed.

                        The first is to consider the lease. Is there anything which can be construed as negating section 62(2)? Is it necessary to go through the lease with a fine tooth comb? I would suggest not. I think the test is something along the lines of the following: Give the lease to a competent conveyancer, allow him ten minutes to look at it and then ask what his conclusion is. If we do that the conveyancer will look at any definitions and the "parcels" (the description of the property) to see what they say and go though the "agreements and declarations" to see if they have any relevance. He will not have time to go through the other parts to see if there is some provision which casts doubt on what is included. That should be enough because it is reasonable to assume that what is included is set out in the description, not tucked away in some corner - unless perhaps there is some warning that the parcels are circumscribed elsewhere, for example if the description includes some wording such as "subject as hereinafter provided".

                        If the first step does not clarify the issue, the second is to conduct an enquiry to establish whether at the time the lease was granted the area in question was enjoyed (etc see the words of the section) with the flat. Where an area is not excluded and it can be accessed only from the flat there is I think a rebuttable presumption that it is included.

                        Since there are many possible permutations it is not possible to set out hard and fast rules. However, I think that we can formulate a rule of thumb: If you grant a lease of a flat which has exclusive access to an area such as a cellar or loft that area is going to be included unless it is specifically and clearly excluded.

                        Comment


                          #13
                          I agree that we don't really disagree

                          My only concern is the temptation of readers, or for that matter homeowners and clients ( who have yet to learn that I will throw furniture at them) that when given an explanation, even an expensive one from counsel, to
                          a infer the most favourable and a "one issue" outcome
                          b distill it into a tweet.
                          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

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