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Jul, 2014

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  1. #1

    Default Share of FH yet no Deed of Trust - roof conversion

    I own a ground floor flat and share of freehold with the upstairs flat. The upstairs owners are planning to build a roof extension. They have been granted planning permission and are due to start very soon. We have no deed of trust in place and therefore they are of the opinion they do not need our consent to build on the roof. Their solicitor has said they do not need our consent as they would not be trespassing since the area is jointly owned.

    Our reasons for objecting are mostly due to the noise. The floors are not sound proofed and adding another room at the top will mean more people and more noise. Added to that I believe an area which is jointly owned should be jointly beneficial so there should be some sort of payment to us for consent.

    Any advice would be great.
    Thanks

  2. #2
    Join Date
    Jun 2008
    Location
    oop north
    Posts
    4,779

    Default

    The top floor flat must get permission from the freeholder to use
    the roof space. ( Buy the roof space- as well ! )
    As you are, as you state, a 50% freeholder, then if you do not
    give permision for the alteration, then in theroy, he cannot proceed.

    You say you have no deed of trust, so what else do you have ?
    A lease ? a hand written promissory note ?

    I ask this so others may advise you accordingly.

    Also, ( being my usual confrontational self ) if you share ownership
    of the property, you have a share in the roof space, as you have a
    share of the drives, path, front and rear garden, which alows you
    to use those when you like.
    The "common parts" should be as above - Garden etc, and also
    the roof space.
    If you don't get a clear answer, then insist that the roof space must
    be bought from the freeholders.
    If he declines then you state as the roof is common parts, you want
    to use the new space all day Saturday, Sunday, Wednesday,
    and 12 hours Friday ( 3 ½ days out of 7 = 50% )

    So other more infomed people can give you legal advice, what
    legal documents do you have.
    ( in relation as to who owns what, and who can use it )

    R.a.M.

  3. #3
    Join Date
    Mar 2010
    Posts
    524

    Default

    Quote Originally Posted by ram View Post
    The top floor flat must get permission from the freeholder to use
    the roof space. ( Buy the roof space- as well ! )
    As you are, as you state, a 50% freeholder, then if you do not
    give permision for the alteration, then in theroy, he cannot proceed.

    You say you have no deed of trust, so what else do you have ?
    A lease ? a hand written promissory note ?

    I ask this so others may advise you accordingly.

    Also, ( being my usual confrontational self ) if you share ownership
    of the property, you have a share in the roof space, as you have a
    share of the drives, path, front and rear garden, which alows you
    to use those when you like.
    The "common parts" should be as above - Garden etc, and also
    the roof space.
    If you don't get a clear answer, then insist that the roof space must
    be bought from the freeholders.
    If he declines then you state as the roof is common parts, you want
    to use the new space all day Saturday, Sunday, Wednesday,
    and 12 hours Friday ( 3 ½ days out of 7 = 50% )

    So other more infomed people can give you legal advice, what
    legal documents do you have.
    ( in relation as to who owns what, and who can use it )

    R.a.M.
    One legal point to consider is whether the freehold title is registered as well as both leasehold titles.
    If all three titles are registered then there will be conclusive evidence about what property was demised by the leases and what property remains totally in the ownership of the freeholder.

    It is a fact of property law that a lease cannot be in the same name as the freeholder, which is why so many properties that were divided into two flats have the freehold in the joint ownership of each flat tenant. Each time a flat lease is transferred the new leaseholder is usually conveyed the half share of the freehold as part of the deal.

    Did that happen when the flat was bought by you?
    Were the changes in ownership recorded with Land Registry for both leasehold and freehold titles?

  4. #4

    Default

    Thanks very much for your reply.

    We only recently bought the freehold and didn’t get round to putting in place a deed of trust before the upstairs owners proceeded with planning. Therefore, as it stands we have documentation to say we own a share of the freehold and we each have our separate leases. Neither of which refer to the roof space.

    I agree with your response and am therefore confused as to why their solicitor has said in writing they do not need our consent to proceed with the build.

    It is going to be a costly process through our solicitors and I think you have given me some reassurance that it will be worth it.

  5. #5
    Join Date
    Jun 2010
    Location
    Foundation trench for New Shed@ Ham on Rye
    Posts
    14,454

    Default

    It depends entirely on the lease. If the roof and space is not included in the lease then they are intruding into and altering property which you jointly own.


    The freeholders, you and FFF, therefore have an asset which has a vlaue which the freeholders are entitled to a vlaue form FFF as a leaseholder.

    If however the roof and area in within their lease then likely it is imply a matter of consent and adjusting the service charge percentages for any shared costs or insurance.

    As to consent I would want to see that the builder is reputable experienced and preferably qualified and in order to grant consent, that the freeholders, you and FFF appoint a charted surveyor and or engineer to approve the works, and that FFF not just the builder has adequate insurance in place.

    They will not be able to mortgage or sell without that consent.

    That said how nice it will be living in a building where ultimately you could end up hating and beholden to each other
    ....
    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. More ramblings atleaseholdpropertymanager.blogspot.com

  6. #6
    Join Date
    Jun 2008
    Location
    oop north
    Posts
    4,779

    Default

    Before you engage solicitors, and after you may receive more replies,
    ( can take 5 hours to 5 days ) just write to the top flat stating the
    previous and future answers you get here.
    Why pay £ 250 per hour if it's a simple matter of you are 50%
    freeholder, and do not give permission. !
    ( assuming it turns out to be that simple )

    R.a.M.

  7. #7
    Join Date
    Oct 2012
    Posts
    398

    Default

    Not sure I understand the issue clearly.

    You said you recently bought freehold and are also referring to deed of trust. The latter is normally used to ensure contractual nexus in Tyne & Wear type leases where 1st party owns freehold of upper flat outer shell and leasehold of lower flat inner shell and 2nd party the opposite. Is that the case here.

    Other q is a conveyancers would normally sort all this before completion to avoid prejudicing a lenders security, not sure why you had obligation to sort this.

    Look forward to hearing from you and as previous poster the devil is on the detail regarding in particular roof space.

  8. #8
    Join Date
    Aug 2010
    Location
    London
    Posts
    1,090

    Default

    The answers will be in the details of the leases.

    One problem you have is the 50/50 share, no majority so, ultimately, no authority.

    Another way of determining if you (as FH) have an interest in the loft is if there is any mention of who is responsible for repairing the roof. If a lessee has sole responsibility for maintaining an item it's usually because it's demised to them.

    On a final note, noise is not a valid objection. Very few things are sound proof, but flats (purpose built or converted) more than 15-years old are unlikely to have much in the way of acoustic insulation (unless the works were carried out above the standard of the Building Regulations).
    There is always scope for misinterpretation.

    If my posts can be interpreted in two ways, one that makes you feel angry and one that doesn't, I meant the latter.

    Everyday is an opportunity to learn something new.

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