Developer building penthouses above me

J

Joey111

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Hi all,

I'm not sure if this is the right forum, apologies if it's not.

I am purchasing an apartment that is on the top floor of the block. There are many similar blocks in the development, the only difference is all these blocks have got penthouses in the roofs of them whereas my block does not have any penthouses in the roof. This means that I am on the top floor of the block and is one of the main reasons I choose that particular apartment.

When I was signing contracts and putting down my deposit, I asked my solicitor to put a clause in the contract the would prevent the developer from building above me. My solicitor sent correspondence to the developer's solicitor saying "Please note contracts are forwarded strictly subject to confirmation that our client's property is located on the top floor of the block and that no penthouse will be built over it". The developer's solicitor replied and gave confirmation thereof.

When I recently done my snag I noticed that the stairs went up into the roof and so did the lift. I asked the foreman and he said they were going to put in penthouses subject to planning permission.

My question is this, where do I legally stand considering the fact that the developer gave confirmation that they would not do this? Any advise or opinion is greatly appreciated.

Joey
 
Joey111 said:
The developer's solicitor replied and gave confirmation thereof.
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Well done and it looks like you may have a juicy breach of contract incoming .

He may apply for and get planning but should be in breach of contract with you at that point (he need not build even) ....unless maybe he sold the entire block in which case it could be complicated .

To stop him building you must be prepared to sue and you may have to be prepared to injunct him on the spot to stop him .

The local authority planners will not give a hoot about you or your contract but an Bord Pleanála may ....just about...take note of it .

You will need proper legal advice and sharpish .
 
Well I'm currently taking advise from my solicitor. Has anyone heard of a similar situation before? I'd love to know if there is a precedent out there.
 
Joey111 said:
Well I'm currently taking advise from my solicitor. Has anyone heard of a similar situation before? I'd love to know if there is a precedent out there.
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I know of a couple who bought off plans a top floor apartment. The developer then decided to build a penthouse. Couple sued (had no confirmation like you though) and only got 20K compensation.

My advice. Kick up trouble, bring in solictors but try to get one of the penthouses then at knock down value in lieu of your apartment.
 
I think I'll be visiting the planning office to see exactly what the plans say. Thanks for the advise so far.
 
Joey111 said:
Well I'm currently taking advise from my solicitor.
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Your solicitor should be able to tell you straight out what your options are in relation to this seeming breach of contract. What has s/he said about this and the legality/enforceability of the additional clause added to your contract?
 
My solicitor has confirmed that they are in breach of contract and has sent correspondence to the developers asking to explain themselves. I'm currently waiting on them to reply. I have spoke to a few different solicitors and they all agree that the developer has breached the contract but their responses to the enforceability of it varies. As with most cases it comes down to the judge you get on the day.

My options are:
1.) pull out of contract and sue for losses
2.) continue with purchase and sue for losses
3.) take out an injunction to prevent developer from building
 
4) Try to get one of the penthouse for a knock-down value in lieu of you not suing and holding up the development.
 
phoenix_n said:
4) Try to get one of the penthouse for a knock-down value in lieu of you not suing and holding up the development.
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I'd love to try that Pheonix but unfortunately I don't think it's an option for me. The penthouses will go for around 1.3+ mil and even if they took off a fair chunk of that I fear it would be outside my budget !
 
Joey111 said:
My options are:
1.) pull out of contract and sue for losses
2.) continue with purchase and sue for losses
3.) take out an injunction to prevent developer from building
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Presumably, as with any legal route, there is always a danger of you ending up out of pocket due to legal expenses etc.? And these things can drag on.
 
ClubMan said:
Presumably, as with any legal route, there is always a danger of you ending up out of pocket due to legal expenses etc.? And these things can drag on.
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Yes this is absolutely a risk, however I feel that I have a very strong case. I specifically included the clause to prevent this and in my opinion the builder has acted in a very underhand fashion and is purely driven by profit. I still hope that it can settled amicably between myself and the builder.

According to my solicitor, the riskiest legal route for myself would be to take out an injunction.
 
Which, if any, particular option has your solicitor recommended as the best one?
 
ClubMan said:
Which, if any, particular option has your solicitor recommended as the best one?
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Either option 1 or 2. I am meant to be closing this apartment tomorrow and this might cloud the issue.

It is important to note that I haven't heard back from the developer yet. For all I know they might come back and apologise for breaching the contract and offer some sort of solution to it. They are meant to be getting back to me today so I am waiting on that before deciding my next course of action.
 
This is an interesting case - would love to hear what the resolution is.
 
I'm sure people on the lower floors would have grounds for complaint too. After all if you buy in an apartment block, three storeys high, you don't necessarily want it to become 5 storeys. A lot of people buy in what they perceive to be a small development.
 
Just to give everyone an update on this ...

Basically I closed on the apartment while stating that I wouldn't be prejudicing any future action I might take against the developer. There was no point in suing as the developer technically hadn't started to build over me and was only seeking planning permission so therefore hadn't breached the contract.

As it turns out the developer has been refused planning permission so now there are two dormant 'shell' penthouses above me serviced by a very plush stairs and lift !
 
Another issue is attic space. One of the reasons I bought a top floor apartment was to get the attic space which adds a lot of extra storage space. Will you loose out on this as they were planning to build above?
 
Another issue is attic space. One of the reasons I bought a top floor apartment was to get the attic space which adds a lot of extra storage space. Will you loose out on this as they were planning to build above?
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I'm not actually sure where I stand on this. The developer applied for planning permission to build into the roof. They were refused the planning permission, so this raises the question who actually owns the roof space?

I found this on the Land Registry website (http://www.landregistry.ie/index.asp?locID=135&docID=421)

2. Registration of Title to Soil, Subsoil, Attic and Airspace:
It is no longer necessary for practitioners to prepare plans for either the soil/subsoil levels or airspace level of the property as they will now be considered to be excluded. This change is being introduced because the vast majority of multistorey cases are leases where title excludes the structural features, soil/subsoil level and attic/airspace levels.

I haven't checked my lease yet but this would suggest that I do not own the roof space. But who owns it now that the developer has been refused? Is it the developer or do the management company own it? I think I need to speak to a solicitor who would be familiar with such cases.
 
Builder applying for retention on apartments built above me

Hi all,

I bought and moved into an apartment last year. When I bought it off the plans it was on the 2nd floor of the building which was the top floor. When I was signing the contract for the property I got the builder to confirm (in a letter from their solicitors) that my property would be located on the top floor and that no penthouse would be built above it. The builder confirmed this.

When I moved in, there was an extra floor above me and I found out that they had applied for planning permission for the penthouses in the extra floor (I had missed the date to lodge an objection). They were subsequently denied permission on a few grounds, mostly the type of windows they wanted to put it in (dormer windows).

Now the builder has applied for retention on the extra floor. I'm obviously going to object, but I wanted to get people's opinions on the builders chances of getting retention? Surely it is very under-handed to carry on like this and the county council can't grant them permission.

Any advice or opinion is much appreciated.

Joey
 
Joey-please don't start anymore threads to address what is essentially the same issue.
 
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