There can be hidden loft areas in a roof of a property that may or may not be part of, say, an apartment flat directly underneath it.
This can cause all kinds of questions and confusion, for example:
• You are purchasing this flat, and the seller appears to be ‘using’ the loft through the hatch to store things
• Solicitors can not clarify if this loft-space can be legally used and added to the lease
• The long residential leasehold excludes the loft from the demise…yet it’s still used, and you don’t know what this means.
• You may hear about buying the loft space from the freeholder, but you don’t know how to go about this
• There’s no clear ownership of this loft space, and even talk of ‘adverse possession’
• You’re looking at conversion and buying of the loft space from the freeholder or Council
CLICK HERE to immediately download a "Loft Lease Fact Sheet" to help clearly identify leases and ownership of loft areas Get to the Bottom of It
Whatever your role or query is, go with your instinct to look further into this and not just pass it aside.
Maybe you're trying to understand who owns the loft space in, say, a block of leasehold flats or what constraints there are with conversion plans.
Dig deeper, ask questions, and clarify this sort of detail. All parties are otherwise open to this coming back to bite if not.
Therefore, here are five basic steps to go through at whatever stage you're at in establishing the ownership and legality of loft space. There's a video overview of these below, and you can view the original slides online here.
1. Clarify What Practically Exists
So, understand how this is accessed and any security measures like locks and keys.Also, whether the roof space is just for the benefit of this apartment or others, maybe just for over this area, and whether there are dividing walls to other separate areas.
Then see if any modifications have been completed. So usually, they are just bare loft space with lots of roof timbers and insulation. Still, people may have placed down floorboards to walk on and store items safely, there may be an electricity supply and lighting connected to the main apartment’s meter, and even a loft ladder that swivels down.
2. Check the Leasehold Demise
This is the official definition of what actual loft space you get. In addition to the basic definition at the beginning of the lease, delve deeper into schedules and paragraphs later in the document with details of what this includes.Basically, the whole leasehold interest of the loft space and its constraints need thoroughly analysing.
Ideally, it should specifically include this extra space. Still, if it is a standard lease used for other levels, unfortunately, it may not, in which case you’re just left with generic reference of, say, up to the ‘ceiling’ of the flat.
3. Change the Lease if Needed
This is the official answer if there is a mistake from when the flat was first sold in that although it may have been practically built with a hatch and the idea to use this space, the lease does not allow it.If the space isn’t needed, then the lease requires varying to include an additional lease granting, often through sat a Deed of Variation. This becomes complicated and costly, with various other parties and their legal fees needing to be included, for example, a landlord, freeholder, management company, mortgage interest, and insurer.
There can also be knock-on effects ranging from implied surrender and re-grants to registration with Land Registry. Also, any complicated issues like adverse possession claims of loft spaces.
4. Crystallise any Consequences of Using This Space
So even if it is permitted, understand how people will use this going forward. For example, it may be intended for a simple storage area. Still, future owners may get carried away with plans to convert it into another bedroom, raising planning permission issues, building control, and wider building insurance compliance. For valuable properties in London, for example, these could turn into profitable redevelopment opportunities, with even additional floors with flat-roofs built on afterwards.
You may also need to consider a freeholder granting consent for a loft lease space conversion.
Longer-term, if the occupation does carry on, then certain rights can also be inherited if unmonitored and controlled.
5. Conclude Whether It Can be Used
In reality, if you're, say, a potential purchaser of a loft lease, this may all need to be left unanswered. If it isn’t officially included in the lease, then no matter how sensible it is to use, in reality, it cannot be formally done.However, any sale does not want halting, so it may be worth leaving as unanswered and the new owner to progress any conversations with the owner afterwards to officially include, which will need to be completed well after they become the legal and registered owner.
Hidden Gems in a Loft
In short, you need to make sure the reality of any loft space matches the legal ownership. If they do, then OK; you need to understand any restrictions in how this is used and changed going forward.Suppose it doesn’t, then you need to tread carefully. First, clarify whether any use continues and if parties want to change the documentation long term. However, it might not be all doom and gloom; it will probably just take a while to resolve fully.
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