Imagine buying a top-floor apartment and your delight when you discover a loft hatch in, say, the apartment’s entrance hall. You ask the seller and they confirm that it is ideal extra storage space where you can leave items like your Christmas tree and old books, a therefore valuable space compared to lower-floor apartments. Even better if the price appears to be the same as lower-floor flats, but this top-floor one has a bonus loft area to access.
The price is agreed, and solicitors are instructed to proceed with legals and complete. The ownership is probably through a long leasehold interest, which in principle just needs transferring or assigning over to the new owner.
But alas, someone may quite rightly pick up on a discrepancy here, where this additional loft space isn’t officially included in this legal document. So although it might practically be something you can use, legally it doesn’t belong to you.
Get to the Bottom of It
Even if this isn’t spotted, don’t try and get away with it. 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 a few steps to go through on this journey of clarifying such additional loft and roof space:
1. Clarify What Practically Exists
So, understand how this is accessed, and if there are any security measures like locks and keys. Also, whether the roof space is just for the benefit of this apartment or others, whether literally just 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, but people may have placed down floor boards to safely walk on and store items, 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 Lease Demise
This is the official definition of what actual space you get, and in addition to the basic definition at the beginning of the lease, delve deeper into schedules and paragraphs later on in the document with detail of what this includes.
Ideally it should specifically include this extra space, but 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 basically a mistake from when the flat was first sold in that although it may have been practically been built with a hatch and the idea to using this space, the lease does not allow it.
If the space isn’t needed, then the lease needs varying to include, or an additional lease granting. This becomes complicated and costly, with various other parties and their legal fees needing to be included, for example a landlord, management company, mortgage interest, and insurer.
There can also be all kinds of knock-on effects ranging from implied surrender and re-grants to registration with Land Registry.
4. Crystallise any Consequences of Using This Space
So even if it is permitted, understand how this will be. It may be intended for a simple storage area, but future owners may get carried away with plans to make it into another bedroom and therefore raise issues of planning permission, building control, and wider building insurance compliance.
For valuable properties in, for example, London these could turn into prosperous redevelopment opportunities, with even additional floors with flat-roofs built on afterwards.
Longer term, if occupation does carry on then certain rights can be inherited as well if unmonitored and controlled.
5. Conclude Whether It Can be Used
In reality, 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 officially 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 well after completion when 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 fine, you just need to understand any restrictions in how this is used and changed going forward.
If it doesn’t then you need to tread carefully. 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 fully resolve.