Deed of Variation - lease

[mtuk100]

HI all. I own a leasehold flat on the upper floor in house converted into 2 flats. I also own the freehold title for the whole building. I am now trying to sell my leasehold flat which has exclusive access to the loft. My buyer wishes to convert the loft but it turns out the the loft is not specifically demised to upper flat and their solicitor has asked that, as Freehold owner, I register a Deed of Variation to demise loft to the upper flat which I am happy to do. However, I'm unclear if I need permission from the owner of the ground floor flat as I believe that there is reference in their lease to access to the loft. The owners of the downstairs flat have no reason to access to loft and assume that it demised to the upper flat. Any advice appreciated. Martin

[R0b]

Have you instructed a solicitor to act on your behalf in this process and if so, you should be consulting with your solicitor as to the question. Unfortunately, you have been very vague with your post because all you have said is that the ground floor flat has a reference to the loft in their lease, but you don't actually tell us what it says, so I am not sure how we can help to answer your question.

What you can or cannot do will ride on the wording of the lease so you are going to have to supply more information.
Assuming the ground floor flat includes a right of access to the loft, then I do not think you can simply demise the loft to the upper flat without being in breach of the ground floor flat lease terms and the upper flat would therefore not have exclusive access to the loft as you are suggesting. That may require an additional variation of that lease to remove the right of access to the loft.

On a separate note, have you fully considered the consequences of agree to the sell the upper flat with the loft space? If you haven't already, you may want to consider some or all of the following:

1. The loft is valuable real estate space so are you giving it away for free or have you agreed a price? The fact the buyer is intending to convert the loft might increase the price of the flat following renovations, so you may have undersold the flat.

2. Even if you agree to demise the loft to the upper flat, do you know what the buyer is going to do with the conversion? The roof itself will not normally be considered part of the loft space and so if the buyer starts to insert velux windows or something similar then they are modifying the external structure of the building, something which they have no right to do but may also affect the ground floor flat rights.

3. Following on from point 2 above, have you considered who will own or manage the roof and how it will be repaired? You may be interfering with rights or responsibilities with the ground floor flat leas, especially if there are water tanks or boilers or other appliances that currently serve the ground floor flat.

4. Loft conversion will mean a structural alteration to the building, and for leaseholders this would usually require consent from the freeholder. have you got the necessary protections in place under your current lease terms as the freeholder of the land? If not, you should consider that before doing something you might regret.

All of the above are issues a solicitor might raise and explain to you in more detail. If you are going at this on a DIY basis, I would highly recommend you get some legal advice if you haven't already.