Leaseholders are increasingly responding with legal action as freeholders and property managers look to develop flat roofs.
That is according to solicitor firm Thackray Williams, which said legal challenges are particularly common where the space is used for roof gardens, telecoms, or plant machinery.
Mustafa Sidki of the construction team at Thackray Williams explained that flat roof developments are surging thanks to record-high urban property prices and limited developable land.
The Leasehold and Freehold Reform Act 2024 is apparently prompting some landlords to act swiftly, as once implemented it will ease enfranchisement and lease extensions.
Sidki said: “With planning policy now favouring vertical expansion, flat roofs offer strong potential for landlords and investors. But these projects are legally complex.
“Get advice early, coordinate with stakeholders, and take proactive steps to safeguard your position — before you build up.”
Leasehold covenants and construction risk
Most leases contain an implied covenant of quiet enjoyment, making disruptive development a potential breach. Leaseholders may pursue: Injunctions to halt works; orders for specific performance; and damages for loss of amenity or distress.
Tribunals assess whether the freeholder acted reasonably, considering: Advance notification and updates; mitigation of disturbance; scaffold design and visual impact; as well as compensation and consultation.
Sidki said the solution is engaging with leaseholders early, offering mitigation plans and ensuring contractors are adhering to agreed conditions.
Structural risks and nuisance claims
Modular rooftop builds can lead to water ingress or structural damage — common grounds for nuisance claims. Damages can be awarded based on: Cost of cure (repair or reinstatement); diminution in property value; and Loss of amenity.
Leaseholders can also seek compensation for distress and suffering.
The Party Wall Act
Where the roof structure intersects with other premises, party wall rights may apply. Flat roofs often adjoin subjacent flats, making the Party Wall etc. Act 1996 relevant.
Freeholders must: Serve formal notice before works affecting a party wall; obtain consent or a Party Wall Award if there is any dispute; and exercise reasonable care to avoid damage.
Failure to follow procedure means the landlord loses statutory protection and may be liable in private nuisance or breach of statutory duty.
To deal with the issue landlords are commended to commission a survey before works are started to establish whether party walls are involved.
The risk of losing your roof
Long-term use of a flat roof by leaseholders — even if not included in their lease — can lead to ownership claims through encroachment. Under the Land Registration Act 2002, failure to challenge such use may result in the roof becoming part of the leasehold.
In McGee(s) v. Long Term Reversions (Harrogate) Ltd (Feb 2025), the Tribunal ruled that leaseholders gained title to a roof terrace through adverse possession after over 10 years of exclusive use.
To succeed, leaseholders must show: Exclusive control; intention to possess; and continuous use for the statutory period.