Q: Our lease does not specify any rules, guidance or boundaries of responsibility for the use of, maintenance and insulation of loft space. Following an initial request to install loft insulation and use of loft space for simple storage from one owner, we would value further advice on the following:
- Expense – Are we (the Management company) within our rights to authorise the laying of loft insulation and loft boards for each respective top floor flat but instruct owners that it will have to be at their own expense? It has become clear that the original build did not lay down loft insulation and this may have occurred because the builders went bankrupt at the time and so we know some corners were cut.
- Freehold – We are in the process of transferring the Freehold from the Landlord to our Management company. The Freehold is a peppercorn rent and as such holds no value but for future clarification around the ownership, use of and maintenance of roof/loft space above respective top floor flats – what would you recommend the management company has in place in terms of documentation to provide absolute clarity?
- Service Charge – Our service charge is calculated on the square footage of each flat. By permitting top floor owners to insulate and board the loft area above their respective flats for simple storage – would this be changing the floor area of their flat i.e. increasing their service charge?
Roof Repair Obligations – The cost of roof repairs and maintenance should still be a communal cost. We understand that even if permission is granted to top floor owners to insulate and lay board panels in the loft space, it is not their responsibility to pay for maintenance or repairs to the roof – this should still come out of the communal service charge?
FPRA Hon Consultant Yashmin Mistry replies:
Having looked at the draft lease we cannot see the loft areas have been demised to individual flat. You would however need to double check the leases for the top floor flats – they may have different forms of leases / description of property demised to them under those leases and / or different lease plan annexed to them.
On the basis however that the description of demised premise is no different in the top floor flat leases to the draft copy lease we have a copy of, the loft areas are retained in the freehold.
Accordingly, should the landlord wish to “sell off” those areas to the individual flats, arguably the rights of first refusal would be triggered and the landlord would be required to serve Section 5 notices on all the leaseholders first. Subject to that offer not being accepted by the majority of leaseholders, the landlord would then be free to dispose of the loft area to the third party ie the top floor flat owner. Thereafter, the loft spaces would need to be demised to the individual flats by way of deed of variation to the existing lease and a new lease plan drawn up and annexed to the flat lease in question.
In terms of service charge amendments, arguably if the loft space is increasing the demise of some of the flats, the service charges would need to be varied to take into account the increase in square footage. Similarly, the other flats service charges would decrease.
The rights of first refusal process is quite complicated and we would suggest a local solicitor is engaged to provide more detailed advice on the Section 5 notice procedure before the loft spaces are disposal off in the way described below.
In terms of roof responsibilities, we assume the landlord would wish to retain control over the actual roof and the cost of maintaining the roof would indeed be costs through would need to be put through the service charge.
Finally, we note from your email that the freehold is in the process of being transferred to the management company. It goes without saying that any disposal of the loft spaces will not be able to take place until the freehold transfer to the management company has taken place.
Question submitted February 2018