If two flat owners share the freehold, what happens to the loft space? In fact, there is no hard and fast rule and the answer will be determined solely by the terms of the lease.
In some cases, the loft space will be demised to the top floor flat in their lease. It will not therefore be included as part of the freehold, but will be held by the owner of the top floor flat as part of their leasehold interest.
This means that the owner of the top floor flat owns the leasehold interest in the loft space and can use that space in accordance with the terms of their lease.
This does not necessarily mean that the space can be used as the owner wishes. To undertake a loft conversion, for example, would likely require a licence to alter or written permission from the landlord. In the case of two flat owners, consent would therefore be required from the other joint freeholder. It is worth noting that, dependent on the wording of the lease, the other joint freeholder may be able to withhold consent to such works.
Alternatively, and more commonly, the loft space is not demised and is instead held jointly by the freehold owners as part of the freehold. This means that no individual freehold owner has exclusive use or possession of the loft space. The implication of such a legal position may seem odd to the owner of the top floor flat; they may be the only party that has access to the loft space but that does not mean they have any rights to it.
This position can, however, be altered by mutual agreement between the parties. For example, the owners could negotiate so that the loft space was purchased from the freehold and was instead demised to one of the leasehold flats. This would usually require a deed of variation to vary the terms of the lease, and possibly a new lease plan.
Furthermore, it is worth noting that even if this was done, a licence to alter may still be required from the co-freeholder, depending on the terms of the lease.
If you are thinking of undertaking such works it is important to obtain legal advice before they begin, otherwise you could find yourself in an expensive legal dispute with your co-freeholder.