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Thomas
Thomas, Solicitor
Category: Property Law
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Experience:  UK solicitor holding an England and Wales practising Certificate.
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Can a leaseholder, for whatever reason, convert the loft despite

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Can a leaseholder, for whatever reason, convert the loft despite objection of the freeholder?
I am the freeholder of a house in London. I own the ground floor flat and the upper flat is owned by someone else on a 999 years lease. The owner of the upper flat wants to extend into the loft to create "more living space". His flat is let out, he never lived there since I bought my flat and the freehold in 1990. I objected in writing to his expansion on the following bases;
1- more people will live above me means more noise
2- parking problems: the drive is shared with next door, so currently 3 people using a very limited and narrow space
3- some services (water tank) for my flat is in the roof
4- roof conversion is major structural work and I am concerned about the structure of the property
5- higher risk of fire
Still he is going ahead with planning permission. Can I stop him?
The lease clearly states that he has to obtain my consent in writing for any work that involves structural changes and I believe what he is proposing is major structural change and also change of occupation capacity which will affect the value of my flat.
He has not paid the ground rent for over 20 years, never looked after his part of the back garden, disputes his responsibility of the garden fence in his part of the garden.
The lease gives him the responsibility of maintaining the roof, and gives me the maintenance of the foundation, i.e. the responsibility is divided horizontally.
Can I stop him from extending into the loft? And at what stage, i.e. when he applies for planning permission, or when he starts the work?
thanks
FM
Submitted: 2 years ago.
Category: Property Law
Expert:  Thomas replied 2 years ago.
Hi FM
Thank you for your question and patience, I’m Tom and I’ll try to help you.
If there are structural changes happening as a result of the conversion then that clause would be breached without your consent. If the lease otherwise refers to the loft and that it should only be used for loft purposes and not for living then this would also be a breach.
Obtaining planning permission means nothing in terms of the lease and whether it is breached. It does not give him the right to do things in breach of the lease.
Therefore, if you consider that the lease is breached then I would again write formally to him expressing your lack of consent and advising that you will apply for an injunction to cease him starting the works if he persists.
If he looks like he’s going to start the works the you should instruct a solicitor to write to him stating that you will apply for an injunction and a claim for costs if he starts. If he does start then you will have to issue proceedings for an injunction at that point to get him to stop the works. If granted then he would be in contempt of court if he carried out the works, which is an offence.
My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.
Kind regards,
Tom
Customer: replied 2 years ago.

Dear *****

Thank you for your reply.

According to your two points, this is what the lease says:

"Not at any time during the said term without the licence in writing of the lessor first obtained to erect or place and additional building or erection of any part of the demised premises other than a shed for domestic purposes only and not without such licence as aforesaid to make any alteration in the plan or elevation of the maisonette hereby demised or in any of the party walls or the principal or bearing walls or timbers thereof nor construct any gateway or opening in any of the fences bounding the demised premises".

Is this applicable to loft conversion?

Thanks

FM

Expert:  Thomas replied 2 years ago.
Hi FM,
I would say that if the plan is altered then it would also be caught by that clause. If not, then it would probably not be caught by that clause and you would have to use the first clause you mentioned.
I would also check the definition of the demised premises to see if that refers to the loft space as such.
Tom
Customer: replied 2 years ago.

Hi Tom,

What do you refer to as the plan is altered? is this the plan of the original house that is now divided into two flats? If so, a roof expansion will certainly alter it. Please see below.

In the 2nd clause there is a mention to no alteration in "timber". The roof frame is timber and a loft conversion will certainly need to alter it to create more space, including windows through the roof, and if he decides to create and a bathroom, that is even worst. Can alteration in timber be referred to the roof structure?

Thanks

Expert:  Thomas replied 2 years ago.
Hi,
The plan referred to will be the original plan attached to the Lease.
If the roof frame is timber and the clause restricts alteration to timber then it should be caught by the clause and therefore be a breach.
Tom
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