Loophole lets flats extend into shared roof space

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CANNY property developers are reaping huge rewards from a legal loophole allowing them to double the size of a top floor flat in Edinburgh tenements – by building into the shared roof space.

Enterprising landlords have been converting small one-bedroom flats into three-bedroom double-upper apartments – side-stepping planning legislation and title deeds to net more than £1250 per month in rents.

Kevin Greenan is angered by loft conversions in tenements. Picture: Ian Rutherford

Kevin Greenan is angered by loft conversions in tenements. Picture: Ian Rutherford

The lucrative venture is sweeping across the Capital, with property owners exploiting vague Victorian title deeds to vastly increase the size of their top floor flats.

But aggrieved neighbours feel they have been cheated out of valuable loft space and are taking their fight to the Scottish Parliament.

They hope MSPs will close a loophole – created by the Tenements (Scotland) Act 2004 – which gives top-floor flats priority rights over the roof space where title deeds do not specify ownership.

Planning permission is not required for conversion work within a property, while building warrants can be issued irrespective of ownership disputes provided the work meets health and safety standards.

The courtroom remains the only official avenue to contest the work but with legal fees likely to soar to tens of thousands of pounds, the costs could prove prohibitive.

Elderly couple Jim and Betty Russell complained to the council and their MSP after a Glasgow developer began major conversion works to the loft of their Murieston Terrace stairwell.

They claim he is upgrading a two-bedroom flat to house five bedrooms by converting the roof space.

“Until this happened everyone in our stair thought they had a joint share in the attic space and roof,” said Mr Russell. “In all our time here – around 47 years – neighbours have paid equal shares of repair costs and maintenance. We don’t know where we stand now and how can it be fair that one owner can ride roughshod doing whatever he wants for his own benefit and profit, without even having the courtesy to let neighbours know what is intended?”

Housing expert Ross McKay, chair of Edinburgh Conveyancers Forum, explained that when many tenements were created in the 1880s title deeds were imprecise and often “silent” on roof space ownership.

He said: “If someone is paying for the work to be done, expanding into it at their expense and it’s all in compliance with regulations then why not?”

Alison Johnstone, Green MSP for Lothian, has taken the Russells’ case to the Housing Minister Alex Neil urging a review of the tenements law.

She said: “I’ve come across a couple of examples like this and, anecdotally, it does seem to be on the increase in the city.

“I don’t think there is anything wrong if expansion is done with the consent of everyone else in a tenement who has shared responsibility for the roof. Where problems arise is if the work affects the roof in any way or if it alters the character of the block of flats. When that happens it seems very odd for it to happen under the radar of the planning system and without the say-so of neighbours.”

Edinburgh City Council says the dispute is a “civil matter” and has no powers to get involved, a view echoed by the Scottish Government.

We have no right of reply

Kevin Greenan, 43, of Murieston Terrace, claims the property developer expanding into the roof space of his stairwell is exploiting the loophole across Edinburgh and owns another four top-floor flats. He fears the current law could spark a wave of top-floor conversions.

He said: “It’s galling because we have no right of reply and there’s nothing we can do. Up until this conversion I had a communal right to put stuff up in the loft space. I dont have that now. I bought a flat with one-eighth of the roof that I’m not getting any benefit out of.”