[2024] UKUT 383 (LC)

The appellant is the freeholder of 307 Barking Road (“the property”); the respondent RTM company seeks to acquire the right to manage the property on behalf of three of the four residential tenants. The property is a three-storey late nineteenth-century building at the end of a terrace; viewed from the front it is at the left-hand end. On the ground floor are commercial premises and a ground floor flat at the rear. On the first and second floors are three flats, and Flat D occupies the second floor. There are common parts, including a staircase by which the flats are reached. The staircase is narrow and steep; outside the top floor flat is a landing big enough for one person to stand on.

The property has a butterfly roof: looked at from the front or back the profile of the roof is a V. The two halves of the roof do not interconnect and a gutter runs between them taking water to the back of the property. The right-hand roof forms an apex with the left-hand roof of number 309, the next one along the terrace, whereas the left-hand roof forms an asymmetrical apex with the left-hand flank wall of the property. In cross-section they form two right-angle triangles with the hypotenuse of each forming the roof slope.

The right-hand roof void can be accessed using a step-ladder through a hatch in the ceiling of Flat D (there are neither stairs nor a pull-down ladder). But it is not demised with the flat so the lessee of Flat D has no right to go up there. Equally, as things stand, the landlord has no access without the tenant’s permission. It would be possible to construct a hatch from the landing to give access from the undemised part of the building; it would also be possible for the landlord to construct an access from the roof space above number 309 through the party wall. But neither of those things has been done.

As we have already said, the internal cross-section of the void or loft is triangular; at its tall side, but nowhere else, it might be high enough for a person to stand up (cautiously, on a joist: the Tribunal did not venture into the loft but looked in through the hatch from the top of the step-ladder). This is a photograph of the interior of the roof space:

The void has no floor, only joists between which the upper surface of the ceiling of Flat D can be seen. There is some roof insulation lying around. Attached to one of the rafters is a notice which reads:

“Danger: Ceiling joists may be covered by insulation material. The floor between the joists is fragile and it will not carry your weight. You should not enter unless crawl boards are placed against the joists.”

There is no access to the left-hand roof void; what if anything is in there is not known. It is not a continuous space because a skylight in the roof provides daylight for one of the bedrooms in Flat D.

There is an extension at the back of the building, perhaps constructed when it was converted to flats, and it has a roof with a shallow void. References to “the roof voids” in this decision do not include the space within the extension roof; the appellant did not seek to argue that that space was part of the internal floor area of the building. Why that area was not part of the appellant’s case is not known, and Mr Cockburn said that the omission of that area was not to be taken as a concession that its floor area was not part of the floor area of the building.

When the respondent served its claim notice in order to acquire the right to manage one of the grounds of opposition set out by the appellant in its counter-notice was that the proportion of non-residential floor area in the building exceeded 25% and that therefore the building was excluded by paragraph 1 of Schedule 6 to the 2002 Act. The respondent said that the two roof voids above the second floor (but not the one above the back extension) were part of the “internal floor area of the premises (taken as a whole)”. Once proceedings were commenced in the FTT directions were given for the instruction of a single joint expert to measure the internal floor area of the residential and non-residential parts so as to provide the figures necessary for the calculation required by paragraph 1 of Schedule 6.

Mr Artur Manzukok MRICS of Ambit Surveys was instructed and produced a report setting out the internal floor area of the building, excluding common parts as required by paragraph 1 of Schedule 6, and excluding the roof voids. He excluded the roof voids because the Royal Institution of Chartered Surveyors Property Measurement Code (2^nd edition, 2018) excludes such spaces from its definition of Net Internal Area and Gross Internal Area. As the report put it:

“A non-habitable under-roof space or a loft conversion cannot be used for living and therefore cannot be considered for measuring and calculating NIA. An attic can be included in GIA if there is access to it via a fixed, permanent stairway or ladder, but not if by a pull-down ladder. Void loft spaces should be excluded within GIA assessment of the building.”

As it was the appellant’s cases that the two roof voids should be included the surveyor was then instructed to measure them, which he did by deducing the dimensions from the interior of Flat D. It is not in dispute that if both the roof voids are included in the total internal floor area of the building, and in the floor area of the non-residential parts of the building (thus the whole gets bigger and the non-residential parts become a higher proportion of the whole), then the property is excluded from the right to manage provisions; if either of the voids is not included then the building is not within the terms of paragraph 1.

The FTT expressed its decision about the roof space as follows:

“28.

The Tribunal is satisfied from our inspection that the roof space is dead space The only access is from a hatch in the top floor flat. The tenant has no contractual right to use this space. This limited roof space is retained by the landlord. However the landlord has no practical means of access to this space. Even if it did, the landlord could make no practical use of it.

29.

The Tribunal is satisfied that the roof space should not be taken into account in computing any “non-residential part” of the premises. It is therefore common ground that the non-residential parts of the Premises do not exceed 25%.”

So the FTT’s decision was that the roof space was to be excluded from the internal floor area because it is “dead space”, being neither accessible nor usable. The appellant has permission to appeal that decision.