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lindalove
17-10-2010, 08:53 AM
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.

leaseholdanswers
17-10-2010, 09:48 AM
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!

lindalove
17-10-2010, 10:12 AM
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.

lindalove
17-10-2010, 10:14 AM
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).

leaseholdanswers
17-10-2010, 10:59 AM
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

lindalove
17-10-2010, 11:52 AM
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).

Gordon999
17-10-2010, 14:51 PM
Have you thought about buying the freehold of your little block together with the other 2 flat owners ?

leaseholdanswers
17-10-2010, 16:27 PM
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.

jeffrey
17-10-2010, 17:40 PM
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.

lindalove
18-10-2010, 10:15 AM
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.

lindalove
20-10-2010, 16:27 PM
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.

leaseholdanswers
20-10-2010, 16:34 PM
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!

lindalove
20-10-2010, 16:37 PM
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?

leaseholdanswers
20-10-2010, 17:02 PM
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.

lindalove
20-10-2010, 18:05 PM
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.

jeffrey
21-10-2010, 09:57 AM
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.
The maxim is NEMO DAT QUOD NON HABET: you cannot sell what you don't own.
So you'd need legal title to the roof terrace + airspace (as well as to the flat). You'd establish that by:
a. proof that you own it already; or
b. obtaining a Supplemental Lease from L; or
c. successfully claiming title by adverse possession.

lindalove
21-10-2010, 12:58 PM
Thanks - well sounds like in the timeline we'll have to do two of the first. We believe the lease proves things but we may need to get more evidence to bolster this ideally from the freeholder in some way. If we ask for a supplemental lease though we are in effect saying we do not think we own it already, which is not what we believe as per my lawyer's advice.

Sounds like adverse possession is a no go anyway as per my lawyer's advice below.

"If you did need to claim by adverse possession it would not be easy as the provisions of the 2002 Act relating to adverse possession are now in force and title to the freehold is registered. You only automatically get title by adverse possession where the title is unregistered. If it is registered and you claim title by adverse possession, the freeholder has 2 years to stop your occupation."

jeffrey
21-10-2010, 13:25 PM
The advice cited is true except for that 'automatically'; it's never 'automatic' that an applicant obtains possessory title!

lindalove
22-10-2010, 09:51 AM
Even after getting a second opinion from another solicitor, who agrees with my assessment that our roof terrace is ours, our buyers are still asking for a deed of variation. I am so annoyed about this its untrue as they are basically asking us to get permission from the landlord for something which two lawyers have now told me is already ours - its hard to know whether to just chuck them in and stick the place back on the market or not.

Anyway its all probably pretty academic now - we'll look into it but if landlord takes it as an opportunity to try and make thousands from us, we will just take him to tribunal and throw the house purchase/sale in. There is a matter of principle I guess.

I'd forgotten how awful house buying and selling is, and it appears everyone is twenty times more nervous than they used to be - is it any wonder the housing market is up the spout. Fact is that even if you check everything in a house as soon as you buy it something ALWAYs goes wrong anyway so you cannot obliterate all the risks.

jeffrey
22-10-2010, 10:19 AM
You could dump this purchaser asap and either re-offer for private sale OR sell at auction.
The latter is the best/quickest way to sell a problem property.

lindalove
22-10-2010, 10:36 AM
It's not a problem property according to two lawyers - we're not going auction route, as we need to get a good price for our place to afford the next one. I think we'll wait to hear what the freeholder has to say and take a view on whether we are prepared to go deed of variation, despite not needing it.

jeffrey
22-10-2010, 10:40 AM
No, it's not a problem property from your point of view; but that's not much comfort, given that P thinks that it is.

leaseholdanswers
22-10-2010, 10:43 AM
Its a tough one; how did the purchaser know about the roof terrace, did his solicitor read the lease and ask? I ask as if there was no mention of it by you, then I wonder, as they would have, made enquires of the freholder for accounts insurance etc, and that he raised a concern. if they did then perhaps that give you further options, as you now have the freeholders positon on record ie not simply that he was "snooping around"

lindalove
22-10-2010, 10:53 AM
Yes the purchaser's solicitor read the lease and asked - us, to begin with ( with a reference to indeminty insurance) but then looking at this now, I imagine they must have also raised it directly with the managing agent - not sure they were allowed to do this!? This of course means our freeholder is aware of it - not that we were keeping it from him anyway, we just didn't think we needed to mention it as my solicitor suggested from initial reading of the lease prior to sale it was included. He has since 100% confirmed this - we would have done indemnity insurance for a quiet life. They have potentially ruined their own purchase for a tiny risk.

leaseholdanswers
22-10-2010, 10:58 AM
Yes the agent is normally authorised to deal with purchasers enquiries on behalf of their client and to the records they keep for them.

Like the OP who has a lease referring to a balcony, which she does not have(!), leases are always well drafted. Oh for the days solicitors actually visited the properties they handled....

lindalove
23-10-2010, 10:39 AM
Just a thought - if we do even get a deed of variation agreement from the landlord, is it not possible the landlord will also seek to raise ground rent at the same time?

As I think our buyers want to extend the lease as its at around 76 years, which means the cost of this will go up for them - ground rent is currently only around £40 a year. I had already knocked some money off the house price to cover this.

What we could do is agree to also extend the lease as well in one deed of variation, to cover roof terrace (non)issue and also the extension? Is this possible as it would probably be better for all doing it that way.

leaseholdanswers
23-10-2010, 18:19 PM
Yes I think so this woul be a good away round, on the basis that you are confident that your solicitor has exhausted or investigated other approaches in establishing your ownership and or right to the area.

If you make a statutory application to extend the lease by 90 years the rent is a peppercon rent ie one peppercorn a year, so you cna use that as a lever to negotiate with the landlord so that you are doing a voluntary extension to a sensible ground rent and if possible to a 999 year lease.