Considering a property with a balcony or roof terrace?

Legal expert Victoria Reed highlights what you need to know.

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 desired al fresco space without the maintenance headache.

‘It can certainly be an attractive proposition,’ agrees Victoria Reed, Chartered Legal Executive in the residential property team with HK Law. ‘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 she 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 and may even have been used 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 within a block. 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 to use 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 balcony or terrace 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 upon receipt of the contract papers.

Who is responsible for the balcony or roof terrace?

Sometimes, it is not ideal to own a feature like this outright. For example, in a block of flats 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 flat, including the surface of the balcony, or simply an exclusive right to use the balcony.

The building owner, or management company, would then be responsible for the structure, with the flat 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. Therefore, it is desirable that the structure is included within the landlord’s ownership.

When buying a flat, 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.

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 your individual circumstances, any lenders requirements, and the need to sometimes be pragmatic.

For further information, please contact Victoria Reed in the residential property team on 01929 428044 or email HK Law has offices in Blandford, Bournemouth, Crewkerne, Dorchester, Parkstone, Poole, Swanage, and Wareham.

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.

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