Attics and lofts are the space under the roof between the frame and the top floor. Sometimes they are empty, sometimes they are fitted out.
In practice, however, it is not uncommon to find at the time of a sale that such fittings are not authorized, or not even capable of being authorized, or that, what’s more, they involve spaces belonging to the common areas of a condominium.
Lastly, as the calculation of attic surface area is not always clearly understood when a property is sold, an imprecise deed of sale can be a source of conflict, calling into question the sale or the price.
As a result, all parties to a sale have an interest in protecting themselves against the risks of a transaction that may call it into question, and in carrying out the necessary checks beforehand.
Property rights
First, when selling property located in a condominium, it is important to check that the surface area in question is actually part of the private lots owned by the seller. In fact, there are situations where an attic is part of the common areas of a condominium and can only be accessed by a single apartment, and sooner or later the occupant of that apartment will not be able to resist the temptation to fit out the attic for his or her private use. However, access from the acquired private lot should not give rise to a presumption of ownership of the attic space.
In principle, ownership rights are verified by the notary before the notarial deed is signed, but it is advisable to check this point before signing any preliminary sales agreement (compromis).
Use in accordance with the condominium by-laws
Next, it should be verified that the use of the lot in question complies with the condominium by-laws. The condominium by-laws may stipulate specific uses or restrictions on the use of certain lots, or even easements or technical servitudes that may limit the use of these areas.
In any case, one should be sure to specify in the deed of sale the existence of the attics, their surface area and configuration, and to protect oneself against any contestation of the right of ownership of such lots.
Precise surface area designation
It is advisable to ensure that the surface indications given by the seller or the real estate agency responsible for the sale of a property correspond with reality, and do not give rise to ambiguity.
Indeed, under Articles 1617 and 1618 of the Civil Code, if the sale of a property has been made with an indication of its volume, the vendor is obliged to deliver to the purchaser the quantity indicated in the contract, failing which the purchaser may request a proportional adjustment of the price upwards or downwards, or withdraw from the contract, if the excess is one twentieth above the declared volume.
It is also important not to confuse usable surface area with living surface area, calculated in accordance with the Luxembourg standard relating to the surface area of dwellings (ILNAS 101:2016).
Even if there is no legal obligation for the vendor to stipulate the living surface area in the notarial deed, it is in the interest of both parties to clearly define in the notarial deed what areas are being sold, and not to rely on unverified information.
Compliance of attic or loft layout and use with legal and regulatory provisions
Of course, the physical condition and use of attics and loft spaces must comply with legal and regulatory requirements.
In particular, the intended use must be compliant and any improvements must be covered by a valid building permit.
It is therefore necessary to verify this compliance in each specific case.
Should it be found that a surface is actually being used without being covered by such a permit, the question of the possibility of obtaining a permit may still be raised, a question that can be verified with the assistance of a skilled craftsman.
It should be noted that, in principle, all municipal building by-laws contain a provision identical or similar to Article 34 of the model building by-law, “Mezzanine and Attic”, which requires rooms intended for prolonged stay by people to have an average clear ceiling height of at least 2.20 meters above the mezzanine, provided that this surface represents less than half the net surface area of the room.
If the premises do not meet the applicable standards, the municipality can prohibit non-conforming use and, if necessary, ask a court to order that the premises be returned to a conforming state, even if they have been used for a prolonged period for residential purposes. Indeed, as far as non-conforming constructions are concerned, there is no statute of limitations or time limit after which an acquired right or the protection of acquired rights through the passage of time must be recognized.
Acquired rights in building law are limited to the right to retain a building that was legally erected with an administrative authorization granted under a previous regulation, but which does not comply with the requirements of a more recent regulation.
An acquired right cannot therefore be asserted in respect of an irregular situation, and the municipality’s failure to react, even over a long period, is not likely to regularize an illegal situation.