When is a house not a house?

[Tipper]

I have given notice to my freeholder to enfranchise the freehold of my house. The response from the freeholder is it's not a house, so no you can't have it!

The 'house' is a 3 bedroom, 3 storey town 'house' in a terrace of 5 with a block of flats at either end. There is no other property either above or below it...it's a 'house'! It was built and sold as such around 1990 in a joint development by the freeholder and a house builder. I even have the original sales brochure and price list for the 'houses'.

The freeholder's argument is that there is undemised property above it, ie, the roof structure and therefore it's not a house. This roof structure is totally separate from all other roofs albeit in a terrace of buildings and only has access from my house. My water storage tanks were in this space until I upgraded the plumbing and removed them. This of course is also true of the foundations, external walls, party walls and window frames so I assume these too will negate freehold enfranchisement.

So how do leaseholders of terraced houses actually gain their freehold?

I know I will now have to get Counsel opinion and my solicitor is arranging this from the recognised expert in the field but what do you guys think?

Is the freeholder talking out of proverbial? Is he really that stupid?

All thoughts welcome, thanks.

[leaseholdanswers]

As long as there is a clear vertical division and no cellars or projections which interfere with the grant of a freehold then it qualifies.

In simple terms freehold implies from the centre of the earth to the top of the sky so a cellar or room that crosses it cuses emblems with granting a freehold.

If they are refusing then have the matter determined at the LVT; counsels advice is not required, simply be represented by a local chartered surveyor that deals with house enfranchisement, who can give expert evidence for you.

[Raine55]

I would be very grateful if you could post the outcome to your question as I am in a similar situation. Many thanks

[Tipper]

Well, Counsel's opinion, and he's the acknowledged expert in the country, is that they are correct, it's a flat!

That's the bad news, but the good news is that as it's a flat we can group together into 'blocks' of two or more units and go collective instead under the 1993 Act! So that is probably what we will do. Need to gather up a few neighbours now.

Counsel's opinion was that the lease was (very carefully) worded so as not to demise all of the house, ie not the foundations, roof, walls, etc and all we lease is the space within. Hence, it's not a house but a 'flat' (even though it's 4 storeys from garage to roof space and solely vertically divided to boot!).

Now I know the Law's an Ass!

[Lawcruncher]

The definition of "house" in the Leasehold Reform Act 1967 is based (as leaseholdanswers suggests) on the idea of "verticality" to ensure terraced houses were not excluded on the grounds that they were part of a building. Unfortunately the wording allows the Act to be circumvented by drafting such as the OP has.

Gold star to the lawyer who drafted the lease.

Black mark to the lawyer who approved it.

[Tipper]

It's interesting that over the years no solicitor has ever raised any issue with the lease. I say this because what we have all bought, and sold, has not been a 'house' even though they were advertised and bought as such many times!

Doesn't say much for the quality of conveyancing lawyers does it?

I suspect the original drafting of the leases was more to do with them all being the same and being primarily written for the adjacent blocks of 70 odd flats, the real ones that is!.

[Lawcruncher]

We do not of course know what any particular conveyancer (apart from yours) may have advised. Not being able to enfranchise is not really a huge big deal. If you had been told would you have withdrawn? Even so, I agree it ought to have been spotted and pointed out. I am afraid that a lot of residential leasehold conveyancing does not get the attention it should have. At the firm I worked for last either we did the job properly and the client had to pay for it, or we did not do it. It is unfortunate that leases are often of the lower priced properties where clients are unwilling or unable to pay higher fees. Still, if something is missed and the client loses out financially, the conveyancer has to make good the loss whatever fee he charged.

The fact that the terraced houses are part of a mixed development explains why the house leases were drawn up as they were. Enforcement of obligations becomes tricky if not backed by a lease.