Q&A - loft space

QUESTION

History

I am a retired architect and I was resident director of the management company of a block of 8 flats for some 14 years and now assist the new directors with advice after my retirement as director 2 years ago. One of the residents acquired her one-bedroom flat some 20 years ago which included a loft space inserted by the previous owner. There is no record of request for or of approval by the directors at that time to the extension and the use of the loft as a bedroom has been allowed to happen, partly due to uncertainty as to whether or not the loft space forms part of the flat. Subsequent change to the Leases of all the flats clarified the position that the loft spaces are outwith the bounds of the flats but the lessee was allowed to continue with its use without formal approval. This changed when I resigned and brought to the attention of the new directors their liabilities in the event of fire or accident in the flat due to the inadequate structural integrity of the loft floor and the inadequate means of escape in the event of fire. The Grenfell Tower fire made us all acutely aware of our liabilities as directors. The directors notified the lessee, who had sub-let the flat, to notify the sub-tenant that the loft was to be vacated immediately which she did and with which the sub-tenant complied. This was notified to the insurance company who supported the action.

...

Current situation

The tenant's contract has now expired and the lessee is putting the flat on the market. The estate agent, under direction from the lessee, is advertising the flat as 1/2 bedrooms with the statement: "There is access via a ladder from the kitchen to a loft room which could be used as a further bedroom with improved access subject to the necessary consents." The floor plans in the brochure show the loft as belonging to the flat and titled 2nd bedroom. The directors are of the opinion that the loft space is uninhabitable for reasons of structural inadequacy as well as affording unacceptable means of escape and any potential buyer must be made aware that all works required to rectify the shortcomings would have to be completed before the loft space could be considered habitable. We feel it is important that a buyer is fully aware of the limitation to the use of the loft space before proceeding too far with purchase. We suspect the seller will oppose any notification to potential buyers of this limitations as the price for the flat would have to reflect the need for the buyer to expend at least £10,000 before occupation. She has consistently refused to take on board the realities and liabilities of the directors and, of course, herself as one of the 8 shareholders of the Company.

Does the stance taken by the directors look sound from a legal point of view and what actions can the directors pursue if the lessee refuses to instruct the estate agent correctly?"

ANSWER

Many thanks for your enquiry.

It would be possible to give a much fuller and more accurate view of the position if I could view the original lease and the amended lease. 

In the meantime, it appears that the Directors have acted quite properly.

I note that you mention that no formal approval was given to the use of the lofty space some 20 years ago. This suggests that informal permission may have been given and it would be very helpful if anyone could recall this. I mention this as, if the loft space has been used for a period in excess of 10 years without any permission, however informal, then there is a possibility that the leaseholder could claim adverse possession. If, however, there was any form of consent then such occupation cannot be adverse.

If we proceed on the basis that there was some form of consent at some stage of the occupation and that such consent has now been withdrawn then the leaseholder, in seeking to utilise a space which she quite clearly does not own, will be in breach of lease and such breach would be actionable.

I would suggest here that the Directors write to the Estate Agent and notify it that no consent for use of the loft space will be forthcoming as the roof space is not part of the leaseholder’s property and cannot be utilised as such. I would copy such letter to the leaseholder so that she is also aware that the fact must be sold as a one bedroomed property only. No doubt you will also be approached to complete the Leasehold Property Enquiries and this can also be made clear in that form.

It may also be wise, where there is a real fire risk and where there is no proper access, to take steps to prevent the roof space from being accessed from the property.

This does not, of course, prevent you, at some future date, from granting consent if proper fire access can be achieved and the necessary consents and approvals have been given. However, the leaseholder should purchase the extra space rather than simply assuming that it can be utilised as part of the demise.

I do hope this assists but please do not hesitate to ask any follow-up questions that may occur.

Charlotte Collins, Solicitor and Operations Director of Realty Law

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