Legal Q&A: can my freeholder build another floor above my "top-floor" flat?

My freeholder is planning to add another floor above my flat. Is he allowed to do this and will it affect me if I want to sell my place?
   
Merrily Harpur
Fiona McNulty28 August 2016

QUESTION: My freeholder is thinking of building another floor on top of my flat, which is currently the top-floor flat of a two-storey building. Can he really do this? What can he build — and what are the implications for me if I want to sell at some stage?

ANSWER: Look at the terms of your lease to see if there are any restrictions on such activity by the freeholder. For instance, your lease is likely to include a freeholder’s covenant for quiet enjoyment, and building and construction works continuing for many months may result in a breach of that covenant by the freeholder. Also, future service charges may be affected by an additional flat in the building.

Your freeholder would need planning and building regulations consents. You could object to an application for planning permission, unless it is a term of your lease that you will not object to any such planning applications being made by the freeholder. You would also be protected by the Party Wall etc. Act 1996, which would be relevant to such construction works.

When you purchased your flat the seller should have disclosed any plans he was aware of that the freeholder had to carry out these construction works. Similarly, if you were to try to sell your apartment at some stage in the future, you would have to disclose the situation regarding the proposed new flat above it — a buyer might be put off by the thought of the building works, and indeed, the value of your flat could be diminished.

WHAT’S YOUR PROBLEM?

If you have a question for Fiona McNulty, please email legalsolutions@standard.co.uk or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE. We regret that questions cannot be answered individually, but we will try to feature them here. Fiona McNulty is a legal director in the private wealth group of Foot Anstey.