Permission for Loft Conversion

[verve]

Permission for Loft Conversion

We would be very grateful for any help with regards to an issue with our neighbours on-going loft conversion, where the roof space is not included in the demise of their lease.

We own a ground floor one-bedroom flat in a converted terraced house. The house comprises a basement flat, 2no. flats at ground floor and 1no. at first floor. We currently rent out our flat and the others are all owner-occupied. We all have a Share of Freehold and are part of a management company, which is administered by the owner of the basement flat.

The first floor flat (above us) has begun converting the roof space without our permission. They are the only flat with access to the roof space.

We received an email from them in May 2010 asking us to agree to getting the Property Deeds amended using a Deed of Variation, so as to effectively increase the size of their demise to include the roof space and to take responsibility for roof repairs etc. No Deed of Variation was sent to us.

In response, we requested some further information with regards to plans, duration of building work etc before we could agree to any Deed of Variation or loft conversion. They provided some further information / plans and we told them that we needed some further time for consideration. We had concerns with the disruption to our tenants, visual appearance to the building and additional pressure on a small communal area.

All the other flats had agreed to the loft conversion. This was how it was left, and there was no agreement or Deed of Variation signed by us.

We discovered that building work had started this January 2011. Scaffolding has been up around the building for 4 weeks (building work starting in December). We received no notice from the first floor flat owners or consulted as part of their planning application.

Our tenants are not happy about the disruption, scaffolding and general building waste / dust. We are concerned that they may serve notice on their tenancy agreement, and we would lose very good tenants and incur the costs of finding new ones.

1. Should a Deed of Variation been drawn-upso that it released us of all obligation for roof repairs etc? Would this have required all of our signatures? What is our legal position?

2. Should we have been consulted during the planning application, as per the notice required to be given to owners with a freehold interest or leasehold interest under the ‘Town and Country Planning (General Development Procedure) Order 1995 Certificate under Article 6 or 7’? Looking up the application online, we are down on the form as having been consulted and that notice was given. This is untrue.

3. The loft is not demised in their lease and therefore it is not theirs to convert. They are adding 55 sq.m to their property with 2no. bedrooms and a bathroom. Can we seek retrospectively our share in the value of the loft space?

4. How do we ensure that we are not liable for the roof repairs etc and we are paying a fair proportion of the building maintenance costs? Can we enforce them into a Deed of Variation?

5. Are we entitled to damages if the tenants move out and we incur costs etc?

Thank you for any help or advice.

[JustinN]

When you say you "have a share of freehold", who actually owns the freehold? The individual leaseholders in their personal names (in which case your signature to a Deed of Variation would have been required) or a company in which the leaseholders each have shares? If a company is involved, decisions can be made on the basis of a majority vote, with one or two directors executing documents such as the deed of variation

Again, if the freehold is owned by a company, it is that company that should have been served with notice of the planning application

If the disruption is sufficient to amount to a breach of the freeholder's covenant for quiet enjoyment, you could seek damages for that - as long as you do not end up seeking damages from yourself as one of the joint freehold owners

As you will see, much depends on who is the legal owner of the freehold: individual leaseholders or a company owned by them

[verve]

I’ve contacted the local planning department. They confirmed that a letter was sent out on 20th August 2010. Unfortunately, we didn’t receive the letter and planning department said that they cannot be held responsible for it not being delivered.

With regards to the notice required to be given to us by the flat owners (a freehold interest or leasehold interest under the ‘Town and Country Planning (General Development Procedure) Order 1995 Certificate under Article 6 or 7’). The planning department take the information filled in on the planning application form in good faith. i.e. that we were consulted.

They did email us some preliminary plans and stated their intention to apply for planning permission. Does this constitute a notice? It would appear as though it might constitute one. In any case, we didn’t give permission for the work or variation to the lease.

I’ve contacted the Land registry. A new title number has been created for their leasehold title in July 2010, and the old title number closed.

The new register includes ‘NOTE: Only the first floor flat, staircase leading thereto and loft space are included in the title.’

The registered Freeholder owner is the Management Company. The title absolute is the Management Company. If we are a member of the Mangement Company, surely we should be given notice and seen a drafrt variation to the deeds etc?

[Richard Webster]

The registered Freeholder owner is the Management Company. The title absolute is the Management Company. If we are a member of the Mangement Company, surely we should be given notice and seen a draft variation to the deeds etc?

Yes and No. Justin N has already made this point.

The company acts through its officers and notices get sent to its registered office. As a member of the company you have a say in how the company runs and can get together with others to call general meetings and make decisions. You should be holding those running the company to account.

[verve]

Thanks Richard and Justin

We are not currently registered as a 'Director' or a 'Member' of the mangement company at companies house.

We purchased the property over 2 years ago. The Company secretary says that it was our solicitors (conveyancing) responsibility to do register us. The secretary now wants to add us a Director. Did we / do we have powers to vote etc?

Who is responsible for registering us as 'members' with Companies House?

Thank you so much

[Richard Webster]

It's the company secretary's job to provide lists of member for Companies House.

You only become a director if the members of the company decide to appoint you as such. With many small flat management companies becoming a director is almost automatic - but it is essentially still a decision made by the company. If the secretary wrote to the seller's solicitors when you bought when answering typical management enquires raised by your solicitors and told them that as an incoming flat owner you would be appointed as director and your solicitors should complete the notification forms and send them to companies house then possibly the secretary has a point - it was expected that your solicitor would have dealt with it.

However unless it was made very clear that that was what was expected it is down to the company secretary to sort out.

The company secretary cannot assume that you become a director automatically - but equally of course the company members do not have to appoint you as such - it is a matter of majority vote if it really comes to it.

[JustinN]

The only point I would add is that, while appointment as a director is not automatic (and is something I would expect the company secretary, not the buyer's solicitor, to do) transferring the seller's share in the company is something the buyer's solicitor should arrange

[verve]

Thanks. The company is limited by guarantee. What has our legal position been in the past? We've owned the flat for over 2-years. I wanted to know if there was an obligation to be consulted as to the deed of variation and loft conversion as per original post (if we were not 'officially' members

Thanks again.

[JustinN]

As you should have been members from the date of your purchaseof your flat, you should have been consulted on any "members' meeting" matters. However, the approval of a Deed of Variation could well be treated as a day-to-day matter, handled by the directors, so you would not be involved in that decision

[verve]

Thanks again.

The Deed of Variation does not seem to be a day-to-day matter? It has granted an extension to their demise into the loft space, which was originally part of the freehold. We have a share of the freehold and therefore own part of the loft space, no? We should have had a legal vote on the issue, as members or as leaseholders (with a share of freehold)?

Thanks