Common area outside of demise

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    Common area outside of demise

    We are in the process of selling a leasehold flat which occupies the whole ground floor of a converted house. There is a section of land which runs across the rear of the house is defined as a common area with the upstairs flat. Beyond that section is our garden.

    The ground floor flat and garden beyond are part of our demise in our lease, but the strip of land immediately at the back of the house is not, and is defined as a common area/right of way for both flats. Because this strip of land does not lead anywhere other than to allow access to the back of the house, it is in effect only used by us and not the upstairs flat.

    Our buyers solicitors have said that they need a surrender and regrant of the lease to include this area, because the area is effectively used exclusively by us.

    We want to know if this necessary for the sale? And if this has to be done, can the freeholder charge us for this?


    #2
    It is used by you, not owned. I suspect the other leaseholder will need to agree. Generally if something involves the Freeholder there is a charge.

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      #3
      Just tell your buyer the common area belongs to the freeholder. You only have the demised area to sell.

      Comment


        #4
        Thank you for your response. The buyer has asked if I have exclusive use of the area (it is occasionally used by window cleaners to clean the freeholder’s flat above). The buyer would like a surrender and regrant of the lease to bring this area into the demise. However, as noted, it is likely that the freeholder will charge an unreasonable amount for this. I now doubt the sale of the property will go through.

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          #5
          Never know about any buyer and whether would complete in any case.
          However, I suggest quickly finding out costs, you may be surprised, it could come up again.
          I suspect may be entitled to access for window cleaner.

          Comment


            #6
            The buyer's solicitor has to be commended as he seems to have actually read the lease. He has seen the situation with regard to the strip and quite rightly asked himself if there is a problem. Going by the information supplied, he has unfortunately concluded that there is a problem where there does not seem to be one. If you can use the area you do not need it does not need to be demised.

            What is your solicitor saying. Did he act on the purchase?

            Comment


              #7
              Unfortunately, our solicitor was taking too long to respond to this query so we sought separate legal advice, which also reflected the advice provided here. Therefore, we told our solicitor we would not agree to a surrender and regrant. This was then conveyed to the buyer who subsequently pulled out.

              This solicitor did not act on the purchase. This was also not highlighted as an issue when I bought the flat. I have gone back to the solicitor I used for the purchase to query this.



              ​​​​

              Comment


                #8
                Originally posted by Tom-watts View Post
                ...our solicitor was taking too long to respond to this query​​​​
                Residential conveyancing is for the most part routine high grade clerical work. In a conveyancing matter both parties are working to the same end and so conveyancers tend to deal wth each other in a spirit of co-operation. If something non-routine crops up there will be an understandable tendency to deal with something straightforward before tackling something awkward and also a reluctance to get involved in an argument. Whilst that may explain a failure to address a problem, it does not excuse it. You pay a conveyancer to do a job and he needs to grasp the nettle if a problem arises.

                Originally posted by Tom-watts View Post
                We told our solicitor we would not agree to a surrender and regrant. This was then conveyed to the buyer
                Did your solicitor just write and say that and no more? If so, he should have made more of an effort on your part to try and rescue the deal. I would have written something along the following lines:

                After carefully considering the matter we advised our client that we could not see the necessity for there to be a surrender and regrant. Our client has taken the precaution of seeking a second opinion from another firm and they confirm our view. We would accordingly ask you to reconsider the position. If you still feel that a surrender and regrant is needed please explain what you perceive to be the problem and we will give the matter yet further consideration.

                Comment


                  #9
                  Originally posted by Lawcruncher View Post

                  Did your solicitor just write and say that and no more? If so, he should have made more of an effort on your part to try and rescue the deal.
                  Our solicitor never actually came back with an opinion. She merely apologised that we had the seek further advice. I suspect she forwarded our response to the buyer’s solicitor. We have not received a bill as yet as our onward purchase may yet still proceed. I do not feel they have acted in our best interest. Additionally, they were aware that the vendors of our onward purchase had a tight deadline for completion (due to schools), hence we sought additional advice quickly when they were not forthcoming.

                  Do you feel this falls below the standard of service expected and would warrant a reduction in fees?

                  Comment


                    #10
                    I think you are justified in asking for any fee for the abortive sale to be waived.

                    Comment


                      #11
                      Originally posted by Lawcruncher View Post
                      I think you are justified in asking for any fee for the abortive sale to be waived.
                      Thank you for this advice. The solicitor agreed to waive their fee for this sale given the delays on their part. I would like to explore what my options are.

                      Could I claim adverse possession?
                      The lease does not stipulate the dimensions of this strip of land, How could I go about calculating the value of it?

                      Any advice would be appreciated.

                      Comment


                        #12
                        If, as you say, the land "is defined as a common area/right of way for both flats" then no. Apart from that, in this particular scenario you cannot be in adverse possession of land belonging to the landlord. For the relevant law see this thread: https://forums.landlordzone.co.uk/fo...-leashold-flat

                        Even if you had no right of way granted over the strip one would have to be implied. There is no way a court would let a landlord demise a flat and garden with a gap between and not allow the tenant to get to the garden from the flat if the only way to get to it is across the gap.

                        On the basis of the information you have supplied there is no problem. It looks like the buyer's solicitor was not just barking up the wrong tree but in the wrong wood. Your solicitor may have been able to rescue the sale with a quick response. However, since you have not been charged probably best to draw a line under the affair and hope that the next buyer's conveyancer is on the ball.

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