Wrong original lease reigstered with Freeholders/HM Land Registry?

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    Wrong original lease reigstered with Freeholders/HM Land Registry?

    Hi, long time lurker here, hoping someone might be able to advise.

    We recently purchased the leasehold and shared freehold of a ground floor mansion block flat. There are gardens all long the back of the Mansion block, which only the gournd floor flats have acces to. Most have fences all around the garden, and when we bought our flat, there was also a lock on the inside of the gate, so only we had access.

    The gardens that aren't fenced have gone to rack and ruin - there is no money being spent by the Freeholders/Management company on the back gardens. The lease wording however is very vague. It mentions "common parts" that everyone can access, but also include things like lifts, parking spaces etc, that don't apply to our block.

    Recently, the directors, who are all 1st or 2nd floor flat owners, have been suggesting all fences should come down, as gardens should be communal - which would gratefully affect the privacy of our flat dwellers (and probably its value). However, I've started digging into the history of the building, and found:

    - from the beginning, gardens for meant for the sole use of ground floor flats (original plans, and old letting adverts from 1909 onwards),
    - the gardens remained private for the ground floor flat, right up until the first renters were able to buy their flats, in 1972

    We then tracked down one of the original owners, one of 5 flat owners who first bought the leasehold in 1972. She was shocked at the idea the gardens were being said to be communal, and said they were all very careful when they drew up the original leases, to make sure it stipulated the garden was for ground floor use only. I read her the wording of our (clearly generic Mansion Block lease)and she says it isn't the one they drew up! SHe doesn't have her copy, but did know that a solicitor bought the flat from her a few years later, whoc was also meticulous about the garden/lease. So somewhere, the lease doe seem to have been swapped out. Or lost, and replaced with a generic one, that has caused all this confusion.

    In addition, the official copy of our lease, registered at HM Land Registry, is signed by... nobody. There is not a signature on it, or seal.

    Other than trying to track down one of the original solicitors (not v hopeful, as it was 1972), do we have any grounds to keep the garden as sole use, considering the law of equivalence would presumably state that if the ground floor renters believed the garden to be theirs, and then they bought (as our contact did), they would presume to continue that use? Do the old adverts and plans help, as in showing the original intent of the building? And can we claim the current lease is void, as nobody has signed it?

    (I should state that the exact wording is that the leaseholders have access and right of passageway across any common parts - to include, any lifts, parking spaces, gardens, paths, hallways etc etc... that have been supplied by the freeholder for the common use of tenants. - but in theory, surely the gardens were never supplied for COMMON use, only for ground floor use. So the lease does not necessarily conflict with that, it's just vague? And also, I presume, by not tending or gardening any of the gardens out back, and them all going to rack and ruin (save for ones tended by inhabitents, like ours) the freeholders are in breach of their agreement..?

    Sorry this is so long. Very grateful for any thoughts. Do let me know anything else useful. We're sitting down with the old owner tomorrow, to see what else she can remember. The plot thickens...!

    Yikes, so sorry for the spelling errors! I'll concentrate more next time!!


      I had to read halfway through to realise this is a right to buy, ex-public sector, property.

      I assume that by shared freehold, you mean a share in a non-profit company that actually owns the freehold.

      Normally, when a flat first become leasehold, the lease is created and registered with the Land Registry. Subsequent sales do not create new leases, so the Land Registry entry is simply updated with the new "proprietor". As such you would expect the lease and title plans to be unchanged from 1972.

      Extending the lease would create a new lease, and the details could change at that point. If they did, leaseholder who agreed the extension is the one that has caused your problem.

      Nowadays, extensions are normally done as lease variations, so only list the difference from the original lease. If a complete new lease was done, I'd still expect to be able to recover the original lease from the Land Registry, but that would be academic, because a complete new lease would completely override the old one.

      What is the date on the lease that you obtained from the Land Registry?


        Thank you so much for the reply. There is an extension of the lease to another 100 years, from 2002. That references the original 1972 lease. The Land registry has both on file - but the 1972 lease is unsigned. It has the old owner by name, as the person buying the leasehold. But she says this is not the wording she remembers. The land registry only had their photocopy, not an original. So it's a bit of a mystery.

        Not to be too tin foil hat about this... but is it possible the original owner-company didn't like the terms of the first 5 leases that were put together in 1972, and used the generic, non-specific mansion flat lease format for subsequent sales? I called Land Registry and they said our lease/title wasn't actually registered with them til 2005. So lots of time for the actual lease to be replaced (or, perhaps, the freeholders lost the original, so used a generic one). Either way, surely in reality our lease should still be the original one from 1972, as it says it is, but with the actual original wording, instead of this (unsigned, un-sealed) photocopy at Land Registry? Would the old owner's testimony that our lease is wrong help us at all?


          Your lease should be the one from 2002. Extending a lease doesn't simply extend it; the original lease is surrendered and a new one is granted. It might be done with a deed of variation, in which case parts of the original lease document will be included by reference.

          Also, nowadays, the Land Registry doesn't normally want the original signed lease. They will destroy any copy they get, after scanning it.

          If the lease was signed, it would be by the lessor, so it wouldn't prove what the lessee agreed to.


            The Land Registry keeps the record of ( 1) property title and ( 2) the site plan for your leasehold flat.

            I suggest you check if the garden area is shown on the site plan for any of the ground floor flats? You can buy the site plan and download from LR Online for £3 by credit card.


              Hi. Thanks both. Yes, the 2002 lease was a deed of variation. It's just a page, that extends the lease for another 100 years. It is "supplemental to the Lease" meaning the 1972 lease. But the atached lease, which Land Registry were only given in 2005 (when the title was registered), is this generic lease, with no reference to the building itself, and no seal or singatures, form either the lessor OR lessees. It is not the lease the original owner remembers signing in 1972. If she is prepared to write a written statement that the lease filed with land registry in 2005 is NOT her original lease, that subsequent leases/deeds of variations are based on... what then? Can we ask for a new one to be drawn? Can we prove the garden is in fact for private use, as originally intended for the first (at least) 70 years? Thanks!


                It is the tenant's responsibility to register the lease, not the landlord/s. Is 2005 when the lease was actually extended, as a quick search suggests that compulsory registration went nationwide in 2002?

                If it was actually extended in 2002, rather than that just being the start of the 199 years, I'd suggest that someone who sold it in 2005, had lost the original document and had to ask the freeholder for a copy, in which case your case would probably be against them, but you may have statute of limitations problem.

                I was originally assuming that first registration happened on 1972, as it did for mine, but I'm in London,

                Lawcruncher : do you have anything to contribute here, as it sounds like your area of expertise.


                  If it was extended in 2005, it is possible that the same solicitors were used by both sides and they failed to look at the actual leases held on the tenant side, but if 2005 is a subsequent sale, that doesn't apply, as there would be no freeholder's solicitor involved.


                    You're absolutely right, I've just called HM Land Registry again - it was first registered in 2002. The lease was extended in March 2002, so I guess that's when it was registered? But if it would have been filed with HM Land Registry by the leaseholder, why he only had a freeholders copy and not the original one signed by the 1972 owner, I don't now. Maybe he (or an earlier owner) did in fact lose the original.

                    Plot thickens... is there any point in pursuing a "law of equivalence" route - that as the garden had always been private right up to when the owner first purchased it, that right should have been assumed to remain with the first lease (and subsequent sales that didn't change that lease, other than extend the term)?

                    Thank you so much again for your insight. Very useful!!


                      Originally posted by leaseholder64 View Post
                      ILawcruncher : do you have anything to contribute here, as it sounds like your area of expertise.
                      What makes you think that?!

                      What we seem to have is a lease granted in 1972 which was replaced by a lease granted in 2002. What I am not clear on is whether the copies of each have been supplied by the Land Registry. If they have then I think they have to be regarded as definitive. The fact that the copies bear no signatures is not relevant. Since the 2002 lease is registered it has to be assumed that it was properly executed. The rest of this post assumes that the copies came from the Land Registry. I also assume that the 2002 lease incorporates the terms of the 1972 lease. (Despite being described as a deed of variation (which it is not) and expressed to be supplemental (which it is not) to the 1972 lease, the 2002 lease is indeed a lease.)

                      There are two possibilities.

                      The first is that the 1972 lease expressly includes rights over the garden. If it does the rights were included in the 2002 lease.

                      The second is that the 1972 lease did not expressly include rights over the garden. We do not need to consider whether any rights were implied into the 1972 lease because whilst it continued the leaseholder in fact enjoyed the garden. That is important because when the 2002 lease was granted section 62 of the Law of Property Act 1925 comes into play unless it was disapplied by the terms set out in the 1972 or 2002 lease,. Leaving out words unnecessary for this case, section 62(2) says:

                      "A conveyance 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."

                      For the purposes of this thread we tweak that and cut it down to read:

                      "A lease of a flat shall be deemed to include and operate to demise with the flat all areas, courts, courtyards, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the flat demised or, at the time of the lease, demised, occupied, or enjoyed with or appurtenant to, the flat."

                      Since the garden was enjoyed at the date of the 2002 lease the right to enjoy it continues by virtue of the section - but only if, as mentioned above, the operaton of the section is not excluded either expressly by referring to it or by some statement which has that effect.

                      Another string to your bow is to rely on the rule in Smirk v Lyndale Developments Ltd which provides that if a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant.


                        WOW Lawcruncher. That is a brilliant bit of advice. We just sat down with the (lovely) old owner. She says the lease doesn't look like hers. But I don't think we'll get to the bottom of that (unless we can find the original knocking about). However, there is clearly no point in either lease that specifically talks about the back gardens. I will say that the paragraph that is causing all the confusion and endless arguments in the block, goes as follows:

                        Everyone has "full right and liberty... to go pass and repass over and through and along the Common Parts including the main entrances and the passages landings halls and staircases leading to the Demised Premises" (note - there isn't anything that states anyone can "use" any of the common parts, just pass over or through)

                        - and the Common Parts are described as:

                        "all main entrances passages landings staircases (internal and extrenal) gardens gates access yards roads footpaths parking areas and garage spaces (if any) passenger lifts (if any) means of refuse disposal (f any) and other areas included in the Title above referred to provided by the Lessor for the common use of residents in the Building and not subject to any lease or tenancy to which the Lessors are entitled to the reversion"

                        Most have taken this to mean the gardens are common parts. Surely this could also mean - except the gardens at the back, as they are not designated/provided by the Lessor for common use?

                        Or are we scuppered with this wording? Again, you're being such a huge help, and thank you so much!


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