Tenant has "sole right to use garden"? Different lease wording

  • Filter
  • Time
  • Show
Clear All
new posts

    Tenant has "sole right to use garden"? Different lease wording


    So we've been comparing our flat's lease with the leases of the above two properties... and they don't match. We have a ground floor mansion flat that backs onto a small fenced area/garden. The 2 flats above us in our block do not have direct access. The Freeholders have sent out letters saying all gardens are communal (though it does not say that in the rather vague leases) and that fences should come down.

    Two things here: we looked up the old ordinance surveys, and the fences around the garden have been there for over 100 years, in some form. We also have seen an old freeholder's letter from 2004 that encouraged the ground floor flats to tend to the gardens themselves. So taking down all the fences now seems odd.

    But we've also found a paragraph in our lease that does not exist in the leases of the flats above. The other two leases talk only of "right to go pass and repass" over "Common Parts". Could the extra paragraph in OUR lease be implying that our tenant/flat on the ground floor actually does have a "right to use" "the garden", by default, if no notice is given by the Lessors/freeholders? (full wording of paragraph below)? SO that in effect our lease does grant "sole use" of the garden? Ours is the only one mentioning "the garden", in singular form.

    And can the freeholders take down fences that were already there when we bought the leasehold (and share of freehold), without compensation? If they did, our garden would back onto bins, so wouldn't be pleasant for anyone to use! And would no doubt affect our flat's value.

    Extra paragraph in our lease from Second Schedule - Included Rights - section 1 below. Thanks in advance for any thoughts!

    "...AND PROVIDED FURTHER THAT the Lessors shall have the right at any time and from time to time in each case upon giving in each case at least three months written notice to that effect to the Tenant to exclude from the easement right and liberty granted by this paragraph the use of all or any part or parts of the garden or land forming part of the Common Parts but not so as to make access to the Demised Premises impracticable."

    -again, we're the only lease that has this extra paragraph.

    The first part of this only mentions rights to pass and repass, and Common Parts:

    "..Full right of the Tenant... 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.."
    The "Common Parts" are earlier described vaguely as any passageways, lifts, halls, gardens, garages yards etc "provided by the Lessors for the common use of residents in the Building and their visitors…and not subject to any lease or tenancy to which the Lessors are entitled to the reversion.”

    Nothing you have quoted gives you exclusive access. In fact, it even gives the right, to the freeholder, to deny you access, at 3 months notice, as long as you can still access the flat.


      OK. But without 3 months' notice, it implies we/out tenant has the right to "use" the garden, until or unless they give such notice?


        I didn't see any claim that they couldn't use it, only that they couldn't claim exclusive use.


          We found another ground floor flat with the same paragraph, but no 1st or 2nd floor flat with it. I guess I'm suggesting, albeit probably optimistically, that if they can with notice "exclude from the easement right and liberty granted by this paragraph the use of all or any part or parts of the garden", then without giivng notice, we HAVE the"right" for "the use" of "the garden". Whereas the first half of the paragraph on;y grants right to "go pass and repass" over common parts. In other words, like the original set up of the gardens, ground floor flats have the sole right to "use" the garden, whereas (historically) the 1st & 2nd floor flats only have right to pass and repass over it. Or is that reaching a little far?


            I never found a definition of go pass and repass, but for a right or way you only need pass and repass, so I suspect the go stands for go on, and means they can stop for extended periods in the garden.


              This would make sense, as the have little sheds there. (historically they've always been allowed "on" the back yard to use it, but not to use/hang out in the garden itself.) But it's not as clear as one would like. Thanks for you thoughts



                i suggest you buy a copy of the site plan for your ground floor flat from Land Registry Online to check if any garden area is included as part of your demised area.


                  Hi Gordon, Thanks. It wouldn't be demised, as it's about permission - the ground floor flats always used to have the sole permission to use the garden. The 1st and 2nd floor flats could cross it to get to their sheds, but not use/enjoy it. So I guess what we're wondering is if ground floor flats have the below extra paragraph but the 1st & 2nd floor flats do not, could that support they still have sole right to "use" the garden, rather than just pass and repass.


                    If your lease contains a statement which gives you right to use the garden and this same statement is not present in the lease of other flats, then you should draw attention about your right to use the garden , to the new freeholder.


                      Unless the lease gives exclusive rights, the freeholder can give temporary rights to other flats.

                      Also, in terms of the OP, an easement allowing use does not give the right to erect fences to exclude other people.


                        Hi Leaseholder64,

                        Just to clarify: nobody’s erected fences. The original design 100 years came with individual fenced gardens. So seems even weirder for them to now say they want to take all the fences down.


                        Latest Activity


                        • Reply to Old managing agents accounts
                          by jazzythumper
                          So the only statement we have shows, the significant arrears of the aforementioned leaseholder, the only accounts we have ever received at handover were the balances and arrears of each leaseholder. This was never accounted for against actual costs. I presume we should have had this information. Can...
                          24-05-2022, 16:27 PM
                        • Old managing agents accounts
                          by jazzythumper
                          Since obtaining the RTM and changing the managing agent, we have never been given full accounts / receipts for the previous year(s). We believe that as the old freeholder and leaser holder of one of the flats were represented by the same solicitor that prior to the sale of the freehold, we were subsidising...
                          20-05-2022, 11:21 AM
                        • Reply to Freehold confusion
                          by davetg
                          Thanks for the reply - both flats have separate 999 year leases so i guess the freehold is of little value. I will look in to TR1.

                          I have always insured my flat separately and assumed the other flat was doing the same - is this a problem?...
                          24-05-2022, 14:48 PM
                        • Freehold confusion
                          by davetg
                          30 years ago I bought a flat from a friend. The freehold at the time was registered to my friend and the lady who owned the other flat. I understood at the time that I would replace the friend on the freehold but this never happened. This was not a problem until now as when work on the structure of...
                          24-05-2022, 14:29 PM
                        • Reply to Old managing agents accounts
                          by jazzythumper
                          Thanks, I’m not sure that has been provided, if it hasn’t can we force them to produce this?

                          Would it be a simple case of sending a letter with a timescale to respond and if not received followed by the magistrates route?...
                          24-05-2022, 14:39 PM
                        • Reply to Freehold confusion
                          by Section20z
                          1.He will need to sign a TR1 and transfer title to you but it really needs to be done through a solicitor or land registry won't be happy with his ID.
                          2. If you have a separate lease on your flat then freehold is not worth much, if not then it's worth what the flats worth at least .
                          3. Cost...
                          24-05-2022, 14:37 PM
                        • Reply to Share of feehold/shared service charges?
                          by Stu1020
                          Thank you for the response Macromia this is a useful conversation.

                          I can see why the current proportion might be justified, I have been paying 38% towards the buildings insurance the last 4/5 years. However, my dispute is now arising because we are unable to move forward with existing covenants,...
                          24-05-2022, 08:55 AM
                        • Reply to Section 20
                          by Anna1985
                          The driveway/front garden partially belongs to the freeholder and partially leaseholder. The freeholder's maintenance covered by leaseholders, the leaseholder must keep the property in the state of repair but won't do....
                          24-05-2022, 08:23 AM
                        • Reply to RTM Hand Over Issues
                          by Section20z
                          We lost a fair bit of reserve fund when we went RTM but consoled ourselves with the knowledge they would no longer be ripping us off annually.
                          24-05-2022, 07:59 AM
                        • Reply to S20 - Quotes not valid for long enough for 30 day consult
                          by Flatman78
                          Thanks Gordon999

                          You can see from above reply to Macromia that's your comment wouldn't be relevant to me. there is no managing agent. It's just me (FH) and LH in upstairs flat.
                          Thanks for taking time to reply though....
                          23-05-2022, 20:29 PM