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

[sarahbrowne]

Hi,

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.”

[leaseholder64]

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.

[sarahbrowne]

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?

[leaseholder64]

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

[sarahbrowne]

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?

[leaseholder64]

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.

[sarahbrowne]

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

[Gordon999]

Sarah,

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.

[sarahbrowne]

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.

[Gordon999]

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.

[leaseholder64]

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.

[sarahbrowne]

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.