If you are thinking about adding value by expanding your flat into the loft space above then you will need to be careful that you obtain all the legal rights and consents you need from the freeholder (even if you have a share of freehold) before embarking on the expensive process of conversion.
Even forums purporting to provide legal advice sometimes appear to miss the pitfalls.
1. You do not own the loft.
Most leases do not include the loft space in the “demise” of the lease. This means you do not own it or have any rights to use it. This is often the fundamental problem.
Even if you use the loft space for storage you may or may not have a right to do so under the lease terms and in any event a right to use for storage does not lead you to ownership of this area even though you may be the only owner who physically has access to the space.
A landlord will normally be aware of the potential value of the loft space. There is no way of forcing him to sell. Sometimes it is worth considering purchasing the freehold with other tenants to obtain this space rather than negotiate terms with a difficult landlord.
2. You do not own the airspace around the roof space
Even if you own the loft space you may not own the area outside the structure of the building. This may be okay if you only require velux style windows for the conversion but if you want to build out e.g. by installing dormer windows or a balcony structure you will need to own this space also. Sometime this is implied by the lease terms but very much will turn on the exact wording.
Many deeds which purport to include the loft area miss this point.
3. You do not have Landlord’s consent for the required structural changes.
Most leases will restrict changes to the flat. Often minor non structural changes are permitted with the landlord’s consent such consent not to be unreasonable withheld however structual changes (which would be required for a loft conversion) may be prohibited or only permitted with the landlord’s consent. The landlord does not have to be reasonable in deciding whether or not to grant that consent.
Sometime changes to pipes and wires running though the building will also require consent.
The landlord will have legitimate concerns that any changes to the building will not have an adverse effect on the remainder of the building although any such changes are likely to require building regulations approval and the council will oversee the works.
4. You may be interfering with other rights in the building
There may be services or other communal systems e.g. water tanks in the loft space. These may need to be relocated interfereing with the rights of other tenants.
You may want to erect scaffolding to enable the work to be carried out – specific rights should be provided for to enable you to carry out the work.
5. You will need to consider the repair obligations for the building in particular concerning the roof
The roof may be maintained at a communal cost. If you make changes to it the cost of repairing may increase because the roof structure is more expensive to repair. This is sometimes offset by the fact that the upper flat owner is completly replacing or refurbishing the roof and not passing on any of the cost to the other tenants/freeholder. Often we see situations where the tenant is offered the loft space for conversion where they take on this repair responsibility forever more. Each matter can turn on its own circumstances.
In addition you are changing the floor area of the flat – sometimes doubling it – you would need to consider whether the existing division of the service charge/insurance is correct, for example, in a building with two flats will the old 50:50 split turn into 1/3 : 2/3.
5. You assume that a share of freehold equates to consent – it does not.
Even where you own a share of the freehold the other co-owners are not bound to consent to such an arrangement. You still have to deal with the lease and obtain the necessary consents from your co-owners. Some times this can be trickier than dealing with a third party landlord.
If you are considering such work it is important you obtain correct advice on the terms of your lease and the agreements you need to seek to achieve your goal. We provide initial opinions on your lease terms from £350 plus VAT and lease variations and licences for alterations from £500 plus VAT. For further details contact Mark Sadler on 01708 757575 or email firstname.lastname@example.org for further assistance.