Loft without deed of variance

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    Loft without deed of variance

    I am co-owner of a freehold of a terraced house divided into two flats. The neighbours upstairs have extended into the roof (was there before I moved in). I have now become aware that the loft area was not part of the upper floor flat demised area and is therefore part of the communal area. Where do I stand on this legally?

    Theoretically could I insist that the loft area is reverted back to storage or is it more a matter of waiting until they decide to sell and then forcing them to submit a deed of variance.

    Many thanks in advance

    As you are aware, you must have proof the top floor does not have the loft as part of their demise / lease.
    ( info from the land registry )

    First point is that ( assuming you are correct ) is that the top flor has stolen the common roof space area, and will have increased substantialy the value of the upstairs property.

    For the top flat to have legal ownership, first, they have to buy the loft space off the freeholder.
    You are one on the freeholders, so you need approx 50% of the sale of the loft.
    It could be £ 5000 to £ 20000.

    Once a fee has been agreed, you have been paid, then the land registry and deed details can be changed.

    If the top flor flat does not want to pay, then insist they revert the loft to before the conversions, BUT a surveyor in any case must check the converson was done right in the first place, at the cost to the top flat.

    They cannot steal property then sell that which they have stolen, AND for a profit !


      It all depends. Assuming, as appears to be the case, that the loft was not expressly included:

      The first question to ask is whether the lease specifically excluded the loft. If it did then the question arises as to whether the tenant has gained some rights, as to which see below.

      If the loft was not specifically excluded the question is whether it was impliedly included by virtue of section 62(2) of the Law of Property Act 1925 which 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.

      This is subject to section 62(4) which says:

      This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.

      By section 205(1) "conveyance" includes "lease".

      It is my view (with which not everyone agrees) that the above means that where:

      (a) a lease is granted of a top floor flat

      (b) there exists at the date of the grant a means of accessing any loft

      (c) the sole means of access to the loft is from within the flat

      (d) there is nothing in the lease to indicate that the loft is excluded

      (e) there is nothing unusual about the construction of the building

      then, the loft is included.

      A similar argument can be advanced to include a cellar within the demise of a lower floor flat.

      If the wording of the lease is such that it can be shown that the loft was not included that is not the end of the matter.

      If permission was granted it can hardly now be withdrawn since it would be inequitable to do so after the tenant had incurred the expense of conversion.

      If permission was not granted then there comes a point where, the landlord having knowledge of the conversion, must be deemed to have granted consent or, if he has not and the occupation is sufficiently long, that the right to exclude the tenant has been lost. Whilst a tenant cannot (except in circumstances not relevant to this thread) obtain title by adverse possession against his landlord, if he occupies any extension to his demise for long enough it will be treated as part of the demise so that the landlord cannot recover possession of it before the lease expires.

      It therefore needs some investigation to see first if the loft is included and then, if it is not, into the history to see if there is any cause of action worth following up.


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