Can the freeholder charge me for increased property value if I extend into the roof?

I own the lease of a top-floor flat in a Victorian building which is split into three properties, and I would now like to convert the loft area above. The freeholder wants to charge us up to 15 per cent of the increased value of the property - can he do this?

Question: Two years ago I bought the lease of a top-floor flat in a Victorian building which is split into three properties, and I would now like to convert the loft area above. My lease does not specify that I own the loft but a few months ago the freeholder's agent clarified that "the loft space is part of the demise of the flat". However, now that we are ready to build, the freeholder wants to charge us up to 15 per cent of the increased value of the property — specifying that this is normal practice. Can he do this? 

Answer: You need to establish the correct position and so you may wish to contact the solicitor who acted for you when you bought the flat two years ago. I would have expected them to have advised you on the extent of the demised premises — ie the extent of the flat you bought.

Perhaps the lease was varied to include the loft area but there was no formal deed of variation, or maybe the deed of variation has been lost and was not registered at the Land Registry.

If the loft area is not part of your flat and is not included in your leasehold title, it will be part of the freehold and so it will be up to the freeholder whether to lease the loft area to you or whether to retain it.

In such cases the amount you pay for the loft area will be a matter of negotiation between you and the freeholder. If, however, their agent is correct and the loft area does form part of your leasehold interest, the amount the freeholder is looking to charge you may be for giving his consent for these alterations. The terms surrounding the issues of consent should be set out in your lease.

Enlarging rooms into loft spaces can be difficult so consider instructing a structural engineer.

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 partner in the residential property, farms and estates team at Withy King LLP (www.withyking.co.uk).

These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor. 


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