Old apartment lease coming back to bite

Black_Fire

I am the director of a management company and I have had a meeting with a new apartment owner who expressed that the lease they signed from a previous owner has no mention of not being allowed to convert the attic space, specifically making changes to the roof structure, a percentage of which they do in fact own to our surprise. Myself and the other director are at odds over the conversion whereby I don't want to allow it and the other sees no problem as long as its done soundly in terms of an engineers report viewpoint. I just don't want to risk problems with the roof down the line.
The previous owner never had an opportunity to sign the new long lease we created about 6-7 years ago (post MUD act regulations) as they were deceased at that point and their property lay vacant from that point since recently bought from their family.
Our company solicitor hasn't been very clear cut with regards to informing us on the new owners legal standing as they haven't signed the newest lease and it gives me the feeling that we're exposed to the openness of the situation and that they may just go ahead with conversion without a clear cut right for us to object.
Of course the current lease would prevent this situation from emerging had they signed it upon the sale but its as if the past is coming back to haunt us on this one.
Any advise or direction would be very much appreciated.

CircleofLife

How long has it been since you have had a structural survey done of the roof? If this could be done as part of the process (between you and the new owners), and the proposed changes are proved to be okay structurally, then I would go with this. Going against whatever is or isn't in their lease may leave you open legally. That said, I have no experience in this area!

GarIT

Ask the apartment owner if he is willing to pay for a surveyor of the management company's choosing towards the end of the work in return for letting it go ahead with no hassle.

Sleeper12

Do they need planning permission.

It's important to note that the attic space can be converted for storage but it's against the building regulations to convert it to a bedroom

mick121

I'd say they could have problems regarding planning permission, fire regs etc

Lockedout2

When a person buys an apartment they usually buy an interest in a long lease say 999. When they sell the apartment they that lease.

So the rights to the property are contained within that lease.

What do you mean you have a new lease that has to be signed.

Black_Fire

CircleofLife wrote: »

How long has it been since you have had a structural survey done of the roof? If this could be done as part of the process (between you and the new owners), and the proposed changes are proved to be okay structurally, then I would go with this. Going against whatever is or isn't in their lease may leave you open legally. That said, I have no experience in this area!

Thank you for the reply.
I don't think we have had any report done in the last 15 years since I've been living here. I would be happy to see a report done actually since the roof is approx 35 years old, now that you said it. I'd still be very hesitant to allow progression though, even if an engineering report concluded the conversion would take place without issue as I think it is out of order that they won't fall in line to the 'current' lease and I don't like the feeling that they can walk over the rest us that have been adhering.

Black_Fire

Sleeper12 wrote: »

Do they need planning permission.

It's important to note that the attic space can be converted for storage but it's against the building regulations to convert it to a bedroom

It is their right to submit a planning application as the space is their property from what I'm told.

Sleeper12

Black_Fire wrote:

It is their right to submit a planning application as the space is their property from what I'm told.

I can't add to that as I just don't know but they can't use it as a bedroom.

Black_Fire

Sleeper12 wrote:

I can't add to that as I just don't know but they can't use it as a bedroom.

If a planning application is approved them I'm sure that it can be used as a living space. We may look at objections but what grounds we'll have I don't know.

Black_Fire

Lockedout2 wrote:

What do you mean you have a new lease that has to be signed.

Thank you for your input.
The more recent lease was drawn up after the MUD act regs came in where by it listed that structural changes must be a first approved by management however, their lease has no mention of such approval required.

ArnieSilvia

Why not let people live and do what they want with their attic? Is it jealousy? I could never comprehend all that "not allowed this not allowed that" nonsense with the management companies. Does it make any impact on other people living in the apartments?
After experiencing management companies and people attitudes in them (little people on high horse comes to mind) I decided to never be a part of Mgmt Co, like many others

ted1

Black_Fire wrote: »

CircleofLife wrote: »

How long has it been since you have had a structural survey done of the roof? If this could be done as part of the process (between you and the new owners), and the proposed changes are proved to be okay structurally, then I would go with this. Going against whatever is or isn't in their lease may leave you open legally. That said, I have no experience in this area!

Thank you for the reply.
I don't think we have had any report done in the last 15 years since I've been living here. I would be happy to see a report done actually since the roof is approx 35 years old, now that you said it. I'd still be very hesitant to allow progression though, even if an engineering report concluded the conversion would take place without issue as I think it is out of order that they won't fall in line to the 'current' lease and I don't like the feeling that they can walk over the rest us that have been adhering.

Is it not more out of line that you changed everbodies lease in the first place. ?

Sleeper12

Black_Fire wrote:

If a planning application is approved them I'm sure that it can be used as a living space. We may look at objections but what grounds we'll have I don't know.

In a house you can't get planning permission for a bedroom in the attic space as it's against the building regulations. I have don't know if it's the same for topics floor apartments but if they get permission to convert it most likely won't be for a bedroom.

surrender monkey

Any apartment lease I have seen is very specific in what is demised to the owner. This information is usually contained in a schedule in the lease. It must be a poorly drafted document. Have you brought the lease to a solicitor to get a legal opinion on it. I sincerely doubt that if the roof structure was damaged by the attic conversion that the owners would be able to pay for the repair. And if the management company allowed the atttic to be converted then I doubt the block policy would cover it either. I've never heard of a new lease being signed up to either! When you buy an a second hand apartment you buy the remaining term on the original lease you don't get a brand new lease.

touchdown77

surrender monkey wrote: »

I've never heard of a new lease being signed up to either! When you buy an a second hand apartment you buy the remaining term on the original lease you don't get a brand new lease.

The OP mentions the new long lease was after the MUD regulations so perhaps they signed new leases to reflect the changes?

Black_Fire

ted1 wrote:

Is it not more out of line that you changed everbodies lease in the first place. ?

I wasn't on as a director at that stage. Also lease required amendment as the MUD act came in to protect owners an management companies.

ted1

Black_Fire wrote: »

ted1 wrote:

Is it not more out of line that you changed everbodies lease in the first place. ?

I wasn't on as a director at that stage. Also lease required amendment as the MUD act came in to protect owners an management companies.

Your change in lease seemed to take away owners rights.

ted1

Sleeper12 wrote: »

Black_Fire wrote:

If a planning application is approved them I'm sure that it can be used as a living space. We may look at objections but what grounds we'll have I don't know.

In a house you can't get planning permission for a bedroom in the attic space as it's against the building regulations. I have don't know if it's the same for topics floor apartments but if they get permission to convert it most likely won't be for a bedroom.

You can provided thstvit meets planning regulations.

E.g fire doors, 8 ft head height for 2/3 of room etc

Black_Fire

surrender monkey wrote:

Any apartment lease I have seen is very specific in what is demised to the owner. This information is usually contained in a schedule in the lease. It must be a poorly drafted document. Have you brought the lease to a solicitor to get a legal opinion on it. I sincerely doubt that if the roof structure was damaged by the attic conversion that the owners would be able to pay for the repair. And if the management company allowed the atttic to be converted then I doubt the block policy would cover it either. I've never heard of a new lease being signed up to either! When you buy an a second hand apartment you buy the remaining term on the original lease you don't get a brand new lease.

surrender monkey wrote:

Any apartment lease I have seen is very specific in what is demised to the owner. This information is usually contained in a schedule in the lease. It must be a poorly drafted document. Have you brought the lease to a solicitor to get a legal opinion on it. I sincerely doubt that if the roof structure was damaged by the attic conversion that the owners would be able to pay for the repair. And if the management company allowed the atttic to be converted then I doubt the block policy would cover it either. I've never heard of a new lease being signed up to either! When you buy an a second hand apartment you buy the remaining term on the original lease you don't get a brand new lease.

New leases were drawn up after the MUD act regs came in. All residents were happy about the new leases as they all signed except for the deceased party of course who never had the opportunity but looking at this situation regarding their additional space, there would have been difficulties as there is now I'm sure. Current owners are looking to base their conversion efforts off the lease that was signed over. Our argument is that the sale is not complete until they sign the more recent lease.

Sleeper12

Sleeper12 wrote: »

In a house you can't get planning permission for a bedroom in the attic space as it's against the building regulations. I have don't know if it's the same for topics floor apartments but if they get permission to convert it most likely won't be for a bedroom.

You can get planning for a bedroom in an attic. The popularity of attitc conversions alone over the last while should tell that. Not everyone gets planning I know but there is a lot of people with bedrooms in attic conversions and they aren't all doing it without planning.

Did a management Company AGM agree to amend the terms of the original lease and is a majority sufficient to do this?

If so, it would seem that everybodies lease is changed, including the apartment owned by the deceased member. It sounds bizarre that the management company would effectively negotiate different lease terms for the various apartments, which is what you say seems to have happened.

You need clear legal advice on the 'new lease' situation and what was done then.

If the new owners do in fact have rights to convert their attic space, you should not refuse them, but make asure you have guarantees regarding the structural integrity of the roof. I'm not sure what these would be but I imagine undertakings from suitably insured professionals would be the way to go.

the_syco

Black_Fire wrote: »

Our company solicitor

Perhaps ask your solicitor if the owners do have "rights" to the attic, does that also include upkeep of the roof?

Also, check if you can see what they bought?

Actually, the issue here might not be the case in point, but the other leaseholders who owned attic space and might not have realised that by agreeing to the new leases they might have unwittingly surrendered some of their property (their attic spaces) back to the Management company.

It seems really strange that the 'new leases' would have affected the ownership rights of the lesees and furthermore that they (and their mortgage holders) would have agreed to this.

The whole situation about the 'new leases' seems very strange. If you dont have clear answers from you own legal advisors you should get a second opinion.

antoinolachtnai

Black_Fire wrote: »

New leases were drawn up after the MUD act regs came in. All residents were happy about the new leases as they all signed except for the deceased party of course who never had the opportunity but looking at this situation regarding their additional space, there would have been difficulties as there is now I'm sure. Current owners are looking to base their conversion efforts off the lease that was signed over. Our argument is that the sale is not complete until they sign the more recent lease.

You need good legal advice here and fast. You would be embarking on a legally treacherous path by suggesting that the new owner’s title in the property is somehow deficient. If the apartment owner’s bank gets wind of this you may well end up in the High Court with damages and a costs bill to pay.

If you were going to try this bold and probably illegal manouver, the time was when the estate of previous owner was selling. It would have been very risky even then.

But that was the time when the management company solicitor should have raised his concerns. Why didn’t he?

If I were you I would let the guy proceed with his plan providing your insurers are OK with it and there is not too much impact on the development. At the end of the day you have to act in members’ interests, and this guy is a member.

I would also get the whole thing reviewed by another solicitor. The whole thing just doesn’t seem right.

surrender monkey

Black_Fire wrote: »

New leases were drawn up after the MUD act regs came in. All residents were happy about the new leases as they all signed except for the deceased party of course who never had the opportunity but looking at this situation regarding their additional space, there would have been difficulties as there is now I'm sure. Current owners are looking to base their conversion efforts off the lease that was signed over. Our argument is that the sale is not complete until they sign the more recent lease.

Yeah but why was this done. I've genuinely not seen it before? Plenty of apartments built in Ireland before MUDs and I e never come across owners having to executing a new lease. Was it done because there was no management comapany in the original documents. Did the management company have a solicitor draft the documents? If so go back to them. Were the fresh leases registered in the land registry? An owner derives their interest in the property from the lease that is lodged in the land registry. Is there a schedule to the original lease under the heading "the demised premises" if so that schedule should expressly state what was demised to the owner. It would often say Wording like ...."but excluding the roof spaces" ? Maybe the folks over in the legal forum would have pointers for you?

antoinolachtnai

The more I think about it the more difficult I think this would have been to do comprehensively. It isn’t enough to get the owners to sign to replace the lease. They have to have independent legal advice and the owners bankers also need to consider and approve the replacement lease.

In practice it would be very difficult to actually do this.

If the new lease in any way reduced the owners’ rights it would be very difficult for solicitors to advise owners to sign and especially if not everybody was going to sign up to the new rules.

The whole thing is mad.

Basically, when one owner was not in a position to react, because he was dying or deceased, the other owners got together and decided to appropriate his property (the roof space), without his agreement. And now you are obstructing the person who bought his property on the basis of this 'agreement'.

You need GOOD legal advice fast, to untangle this.

Franz Von Peppercorn

the_syco wrote: »

Perhaps ask your solicitor if the owners do have "rights" to the attic, does that also include upkeep of the roof?

Also, check if you can see what they bought?

Apartment owners almost never own the roof individually. This case is unusual. The roof keeps the rain off everybody not the top floor. Any fixes to it are management company issues. So ground floor apartments contribute to the upkeep.

In fact when buying an apartment - as my solicitor advised - you buy the internal space only.

In terms of attics the management company can control the attic, generally if there are is no individual access per appartment. In some cases the management company just owns that part of the attic over corridors etc.

The management company can object to a conversion by opposing any changes to the roof, I suppose. If there’s no chance of a window it is not much use. Is it worth it though? It might save the company money long run if as part of the conversion the roof is fixed.

the_syco

Franz Von Peppercorn wrote: »

Apartment owners almost never own the roof individually. This case is unusual. The roof keeps the rain off everybody not the top floor. Any fixes to it are management company issues. So ground floor apartments contribute to the upkeep.

Although apartment owners don't own the roof, they also would own the attic. So if they own the attic, I wonder how loose is the agreement that they bought?

jimmycrackcorm

Black_Fire wrote:

New leases were drawn up after the MUD act regs came in. All residents were happy about the new leases as they all signed except for the deceased party of course who never had the opportunity but looking at this situation regarding their additional space, there would have been difficulties as there is now I'm sure. Current owners are looking to base their conversion efforts off the lease that was signed over. Our argument is that the sale is not complete until they sign the more recent lease.

I don't see how anyone can be forced to sign a new lease unless the contract specifically mentions a mechanism to alter the terms.

I also don't see how you can use the MUD act to force this as:
A. the MC is not the developer
B. Presumably the property was sold to the previous owner before 2011
C. The current owner owns the roof.

It would seem to me practical to not object as if there are future issues, they will have the responsibility to sort them instead of the MC.

I think you'd be foolhardy to try take a legal action without a very clear case. There's a reason why the MUD isn't retrospective.