Hello, I am a solicitor with 20 years experience. I will try to help you with this.
You should go to the report on property from your solicitor at the time you purchased. This should make it very clear exactly what is included in your property. There will be a parcels clause in your purchase contact which will define the extent of your property. As a starting point you can check the title plan and office copy entries at the land registry (available online for a fee) which will show what the land registry thinks the position is. This is not definitive but it is a good place to start.
It would be unusual for your unadapted roof to belong to the upstairs neighbour. When did you move in?
Customer: thanks for your reply
Customer: the house was converted to flats in 1987. At this time there was an ecosting rear extension with a flat roof
Customer: I cannot access the planning permission from this time. I moved in 2 years ago . There is not anything in my lease which mentions the roof terrace but my boundary line includes the rear extension
Customer: my neighbour sent me a plan of his with 'roof garden ' written on the area which is the flat roof but it has clearly been an addition as the writing is different .
Customer: These are my thoughts- there's no planning permission - he has used it as a roof terrace for more than 4 years so it's immune to planning regulations . Regardless of who owns it- 3 builders have said they cannot maintain it whilst the building work is being done - so we need to compromise. His main issue seems to be loss of rent from tenants if we take it down . How do I define specifically who owns the roof terrace- he is saying it is his and the supporting structure.
Customer: Is it worth getting a copy of his lease? If do how do I do that- the kNd registry oy seems to have the sketch of boundary?
Is there actually something built on top of your roof by the upstairs neighbour? Also is the freehold for the property a single freehold title for all the flats in the building?
Customer: There are 2 flats
Customer: one is mine
Customer: one belongs to the guy upstairs
Customer: share of freehold
Customer: there is nothing built on top except a brick wall around the roof and he put railings around it several years ago
Customer: there is also an external boiler on the outside wall. He says he needs access to the roof for the boiler but the roof is about 2.5sq m.
Customer: Thank you
OK thankyou. I think the position here is that you have the right to build using your planning permission. You should tell your neighbour that you intend to get on with the building and invite him to provide evidence of his claim. You should tell him that it is clear from the lease that you own the roof. As there is a joint freehold for the property he can not have an easement to use your roof.
You should give him a time limit to respond and tell him you will proceed after that time unless he provides sufficient evidence that he has any legal interest in the roof. Any right must proceed from his lease and from no other point (eg he can not have got any rights in these circumstances through prescription (ie long term use).