Roof terrace not demised - whose is it?

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    Roof terrace not demised - whose is it?

    Good day to you all!

    I am in the process of purchasing a property in London. It is the first and second floor of a conversion. The survey is happening today so I am not counting my chickens just yet, but I want to prepare should this go ahead as planned.

    The property is a share of freehold shared with 2 other flats on the lower ground and ground floors.

    From inside the flat, when you walk up the stairs you have view and sole access to a terrace through our window.

    On the plan and in the documentation we were given it says that there is a terrace but it is not demised to the flat, however with a sole access (not exclusive though) through our flat.

    I searched the registry for planing permissions and there was no permission ever given to use the roof of the ground floor extention as a terrace, however there is one built. The extention was built in the 80's when the freeholder decided to extend the property and split the property into 3 flats (as it is now).

    Now my question is. Does this terrace even exists as far as planing permission goes. Who does it belong to? Is it in fact the property of the ground floor flat (eventhough they have no access) as it is built on top of their property? Do they own the "air" above their flat? Does it belong to no one and therefore everyone in the freehold?

    What I am trying to get at is, how do we make it ours officially so we can make sure it's in good shape and doesn't damage the floor below. So that we can renovate it and use it or have the option to build an extention on top of it.

    Any help much appreciated.

    Images in attach.

    Thanks Audrey
    Attached Files

    #2
    And here are 2 more attachments
    Attached Files

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      #3
      You say that the lease mentions the terrace but does not expressly include it: What does it actually say about the terrace?

      Is the window which looks onto the terrace a "normal" window so that you have to climb through it, or is it a full length window which opens like a door giving easy access?

      The surface looks like it is laid out a floor and I think it can see a couple of flowerpots, both of which suggest that it has in actually been used. You need to ask the seller what use has been made of it and for how long. The surveyor's opinion on whether it is safe may help.

      Comment


        #4
        Undemised roof terraces can be anything from no problem to an extremely big problem.

        Does the lease grant any use of the terrace? Sometimes outdoor space in London is not officially demised, but the lease contains a provision allowing units appurtenant to the terrace/balcony exclusive use of the area. So it's almost as good as demised. My understanding from solicitors is balconies/terraces are often undemised for maintenance reasons -- e.g., so that the freeholder can repair the roof underneath without interference from any leaseholder.

        If there's no provision in the lease, the terrace is likely retained by the freeholder, meaning it's jointly owned by the shared freeholders and you do (probably) not have any right to use it.

        Does your flat have the only practical access? If not, any of your neighbours could put a chair down on your terrace to sunbathe, etc. Would they realistically want to? Do they have their own outdoor space?

        Do you know if the roof was built to withstand the weight of a terrace - furniture, planters, etc.? If not, you could find yourself liable for any damage to the roof or to the downstairs flat, and it's unlikely insurance or your fellow share of freeholders will pay.

        As to buying the space, I do not believe a freeholder can offer the space for sale only to you. They'd have to offer it to everyone -- including your downstairs neighbour who may well decide to build a skylight/roof hatch, or to just buy it to stop noise from above. Again, do you think they'd want to? The freeholder may be able to give you a deed of variation that grants you use of the terrace (doesn't even need to be exclusive), which at least frees you from a liability standpoint if your use causes damage.

        If the terrace has been in use for more than four years, the freeholder should be able to obtain a certificate of lawful use. If it has been use in for more than 10, you should be clear of planning enforcement.

        Your solicitor needs to be asking a lot of questions.

        Comment


          #5
          Thank you for your replies. I have further information from our solicitor: "The current Lease contains a right to use the terrace appurtenant to the flat but forming parts of the demise of the other flats"

          Our flat has the only practical access through a large window (not a door).

          Does this mean that we may need to try to purchase it from the other freeholders? And if so, any idea how much this may cost? The other people sharing the freehold have been pretty understanding so far and accepted to extend our lease at no cost. I hope they would be reasonable with this. At the very least I would like to use it as a terrace if we can't build on it.

          In your experience, as an alternative, can we ask to have exclusive use of the terrace?

          Thanks in advance,

          Audrey

          Comment


            #6
            Originally posted by Audrey v View Post
            "The current Lease contains a right to use the terrace appurtenant to the flat but forming parts of the demise of the other flats"
            it sounds like it is included in the flat below as the roof of that property. It is entirely possible, if not probable, that the column of air above the terrace also goes with the demise of the flat below. If you have the right to use the terrace none of that is a problem so long as you do not want to make any changes. The set up seems to be such that you effectively have exclusive use of the terrace. If you are set on making changes then it is all going to get a bit complicated as it will involve not only the freehold aspect but also changing the leases. Best to get it sorted before you buy. Do not forget that planning permission may be required.

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