Buying a property with a roof terrace or balcony

A home with outside space appeals to many of us, but it may be hard to find somewhere affordable with a garden and, even then, you may not want the responsibility of its upkeep. A balcony or roof terrace could give you that much coveted al fresco space without the maintenance headache.

‘It is certainly an attractive proposition,’ agrees David Peters, solicitor and Head of the residential property team at Watkins Solicitors. ‘As a result, many developers are now incorporating balconies and roof terraces into their new builds, or owners are adding their own. However, there can be legal pitfalls for the unwary.’

Here  he looks at some of the things to consider.

Is the balcony or roof terrace included?

If the property has a roof terrace or balcony, it may seem natural to assume it is included in the sale. After all, it physically appears to be part of the property; the agent may even have used it as a selling point.

Sadly though, things are not always that straightforward. Sometimes, the seller’s title does not extend to a particular feature. Perhaps the documentation was not correct in the first place, or maybe the seller or their predecessor added the feature without properly checking they owned the space.

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.

Our conveyancing solicitor will be able to explain the potential impact, and help you assess any risk. If the area affected is small, then even if it is not correctly documented, your lender may still be prepared to accept it.

Who is responsible for the balcony or roof terrace?

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. In this scenario, 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, the apartment owners sharing the cost of any repairs through the service charge. In contrast, if your lease includes all the balcony, you may be liable for all the cost of repair. This could be so even if you do not have the necessary rights over other properties to carry out those repairs.

When buying an apartment, your solicitor should also 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.

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.

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 David Peters in the residential property team on 0117 939 0350 or email info@watkinssolicitors.co.uk. Watkins Solicitors has offices in Bristol (Fishponds and Southville) Bath, Hereford and Evesham.

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.