9 November 2023
Buying a property with a balcony or roof terrace
By Charlotte Bentley, Associate, Hayes + Storr.
If a property has a roof terrace or balcony, it may seem natural to assume it’s included in the sale. After all, it physically appears to be part of the property and for most sellers and buyers it is likely to be a major selling point. Most leases only grant an exclusive right to use the space and keep the balcony or terrace within the freeholders ownership. This is to ensure the balcony is properly maintained, together with the roof and the external fabric and structure of the property.
Some apartments, especially those in coastal areas, can be very open to the elements. So, who is responsible for the upkeep and maintenance of your balcony?
Am I responsible for the maintenance of my balcony or roof terrace?
If you’re buying a leasehold property, always ensure that the lease specifies that the balcony is part of the external fabric of the building. In this scenario, the only likely part of the balcony you will be responsible for is maintaining the surface of the balcony floor.
If, however, the lease includes the balcony, you may be liable for all the cost of any repairs. This could be the case even if you do not have the necessary rights over other properties to carry out those repairs.
When buying a leasehold apartment, your solicitor should check what rights the landlord retains. For example, if you share a roof terrace with other residents, the landlord may have the right to take this space back if they want to redevelop the building. Occasionally, the landlord may have this right even if you own or have exclusive use of that space.
Sometimes, it is not ideal to own a feature outright. For example, in an apartment block with a balcony running along its length where each flat has the benefit of an individual section, you would usually have a lease of the inner shell of your flat, including the surface of the balcony. The building owner, or management company, would then be responsible for the structure, with the apartment owners sharing the cost of any repairs through the service charge.
Are all the necessary consents in place?
Any addition to a property should comply with planning and building regulations, otherwise you risk the local authority requiring its removal. If the feature is well established, you may take a view on the likelihood of enforcement action or insure against this risk. In some cases, you may be able to apply for a certificate of lawfulness which would regularise the situation.
Your solicitor can advise you of your options. Bear in mind, non-compliance may indicate issues which are not purely legal. For example, the lack of building regulations consent for a roof terrace may indicate wider issues; you may want to ask your surveyor to confirm it is safe and can bear the additional weight.
Your solicitor should also check the seller’s title to see if the work required any other consents. For example, there may be a restriction in favour of a neighbouring property, or a leasehold property may require the landlord’s consent. Failure to comply with these restrictions could result in legal action or the landlord trying to terminate the lease.
This can be a particular issue with flats, where the title relates to a space carved out of a larger building. For example, someone may own the top floor flat, but not the roof. Indeed, the building’s owner will often retain ownership of the roof, or it will form part of the common areas. If the title does not include the balcony or terrace, or give adequate rights over it, you may have problems getting a mortgage or selling your home in the future. In a worst-case scenario, you may even have to restore the apartment to its original condition.
It is important to mention any feature like this to your conveyancer early on, and they can quickly check the seller’s title at the Land Registry.
Does the property have a flying freehold?
If part of the house extends over land or property the seller does not own, it may be a ‘flying freehold’. This could be a balcony jutting out over a neighbour’s drive or a roof terrace over another apartment, (or a cellar in an older house which runs under another property).
Flying freeholds have a bad press, with some banks refusing to lend on them. This is because it can be difficult to establish a right of physical support, or the necessary rights of repair. However, this is not always so, as many flying freeholds are long established and do not cause any problems in practice. If the area affected is small, then even if it is not correctly documented, your lender may still be prepared to accept it.
How we can help
Our solicitors will identify any potential problems and can propose constructive solutions. For example, if the roof terrace or balcony is not included in the seller’s title when it should be, this could be:
- asking the Land Registry to remap the extent if there is an error in the register;
- taking out title insurance cover; or
- getting a deed of variation, in which the landlord corrects the omission of the balcony or terrace from the original lease.
The most appropriate approach will depend upon the property, and the transaction, including your desired timescale. For example, a deed of variation may be the best technical solution but could take several months and require the agreement of third parties. So, title insurance may be an acceptable compromise. This is the type of issue we would always explore with you, appreciating both your individual circumstances and the need to sometimes be pragmatic.
For further information, please contact Charlotte Bentley in the conveyancing team on 01328 863231 or email charlotte.bentley@hayes-storr.com.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
