Can freeholder reclaim parts of leasehold communal area?

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    Can freeholder reclaim parts of leasehold communal area?

    17-10-2020, 14:12 PM
    I live in a long leasehold flat on a development of 11 properties and communal gardens/car park. There is a corner of the car park that is not marked with parking spaces but still within the boundary line of the leased area described in the leases. The freeholder is a resident leaseholder and owns 2 flats. She has decided to ‘take back’ this corner area to park her 2 business cars and refuses to allow any other leaseholders to use this area. Is this legally correct as she now says her solicitor has confirmed that this corner is not part of the car park?!

    #2
    If it is demised in the lease as a communal area she has no right to claim it. That it is not part of the car park is irrelevant.

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      #3
      Thank you for your reply scot22. Another reason given is that this corner area is ‘undemised’ (whatever that means!?), so therefore can be used solely by the freeholder! Yes it is not marked out on original plan as parking spaces but I am not sure how other 10 leaseholders can get this back as it was previously allocated as 2 visitor spaces that we have
      now lost 😏

      Comment


        #4
        If the area in question is not demised to any of the leaseholders but is part of the freehold then it is part of the freeholder's retained land. The key thing is whether your leases grant you rights over this retained land. If so, the nature of the rights is also important e.g. is it merely a right to pass on foot only or a right to pass with cars?

        Comment


          #5
          As Lorimer points out, the key issue is does the lease grant you any rights over this area. If it doesn't you've got a problem. Does it interfere in any way with leaseholder s rights ?

          Comment


            #6
            indeed, is it on the legal plan as "amenity land". If so you have the same right to use it as the freeholder. If she will not she is said to be "derogating from her grant".

            Comment


              #7
              Thank you, the answers have been helpful. The lease states that all leaseholders have the right to use any of the land within the marked boundary on the lease plan but does not specifically mention this corner area as being solely for the freeholder. Our only concern is that the lease plans passed when the freeholder developed the land, is a condition that there were to be 5 visitor spaces in addition to our own allocated parking space. Although this corner is not marked on the plan as a parking area, for 10 years it has had a sign for 2 visitor spaces. Now that the freeholder has claimed this area for herself, she has left us with only 3 spaces for visitors which is in breach of the plans agreed with the local planning dept. If anyone parks in this corner, they are asked to move by the freeholder. I guess it will cost too much money to pursue but your comments are interesting.

              Comment


                #8
                I do not believe that the planning condition stating that there had to be 5x visitor spaces is actually relevant to whether the leaseholders or their visitors have rights to use the retained land.

                Comment


                  #9
                  On what we know I am reasonably certain the Freeholder, and her solicitor, are bluffing. If a visitor is told to move politely refuse.
                  I often suggest emailing LEASE to get a written response from qualified people. We have visitor parking and it cannot be taken away.

                  Comment


                    #10
                    I can see your point. Would the lease have to state that this particular area Is retained by the freeholder?

                    Comment


                      #11
                      However, the lease does state that the freeholder has the right to alter the area and layout of the gardens of the property. Thanks for your help and I will get in touch with LEASE

                      Comment


                        #12
                        Parking spaces are not garden.

                        Comment


                          #13
                          Originally posted by Raine55 View Post
                          Thanks for your help and I will get in touch with LEASE
                          Good idea. Best to send them a written enquiry attaching a copy of your lease and marking out the area in question on your lease plan or the freehold title plan.

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