Established use right outside demised lease? Help

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    Established use right outside demised lease? Help

    We are looking at a 2 floor freehold with a garden at back of house ground floor which has a long lease on 1st floor. The title plan of long lease clearly shows the demise is at 1st floor only. There is access to the 1st floor from the front.

    However in reality there is a wooden external staircase from the 1st floor into the garden at the back which appears to be outside the demise. At the bottom of the staircase in the garden access to a communal pathway running across the back of all the house can be accessed. My question is twofold 1) has the long leaseholder established "rights" if he can show that the external staircase dropping into the garden outside his demise for some years? and if so 2) would this be limited to a right of access to the communal path at the back of all the houses in the row or would it be to the entire garden outside his demise?

    Thanks very much

    Unless there is an easement referred to within the Lease then constant use of a right of way by a tenant cannot become legal when there is a common landlord of the two properties.

    Someone will need to read through the whole of the lease to find out whether the current situation is lawful use of the landlord's property.


      Whilst the title may may show that the garden is not included in the demise of the first floor, you need to look at the lease to see if any rights are granted over the garden. Such rights could be:

      · An exclusive right to use the garden
      · A right to share use of the garden
      · A right to hang out washing
      · A right to use an outbuilding
      · A right of way to the communal path
      · A right of escape in case of emergency
      · A right to use a bin store
      · Something else

      If no rights were expressly granted, the possibility cannot be ruled out they were granted by the operation of statute. Section 62(2) says that (unless the instrument provides to the contrary):

      A conveyance [includes a lease] of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof.

      The effect of the provision can be quite wide. If the current lease is the first lease and the external staircase was in place when the lease was granted, there has to be a very strong argument that the lessee would be able to use the garden for something and at the very least to get to the communal path. If the current lease is an "extension" lease and while the previous lease was running the lessee used the garden for some purpose not expressly granted, then that use will be deemed included in the second lease - unless the operation of the Act was excluded.

      If it is found that no rights were granted or implied, then the lessee cannot acquire them by long user.

      So, further enquiry is needed as follows:

      Read the lease to see if any rights are granted

      Enquire of both the seller and lessee what use the lessee makes of the garden.

      An important point to bear in mind here is that if the lessee has no rights but has been using the garden, they are probably going to want to continue to do so and may not give up the use without a fight.


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