Communal garden only appears on 1 lease

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Communal garden only appears on 1 lease

    Hi,

    I am currently in the process of purchasing my first property, a ground floor flat in a converted house. The flat above is owned by another leaseholder & they rent their property out (currently up for sale).

    We are a couple weeks away from completing but my Solictor has returned my query regarding why on the land registry the garden is not shown in the boundaries.

    Freeholders title deed shows that the ground floor, back parking is part of my leasehold.
    My flats leasehold title deed shows that the ground floor flat, back parking and front parking is included in the property (as we expected minus the garden)

    In the lease for my flat jt states:

    full right and Liberty for the tenant and all persons authorised by him (in common with all other persons entitled to the like right) at all times by day or by night and for all purposes to go pass and repass through and along the main entrances and front path of the building and the hallway and passages landings and staircases leading to the demised premises and to the communal garden.

    the only other mention of the garden is in the part saying landlord responsibility to maintain/repair garden.

    this was a major red flag as this was advertised as a private garden and up until this point we were under the impression it was private - our solicitor has obtained the other flats lease and confirms there is no mention to the garden. They advised it an error in our lease but the seller does not want to proceed with a deed variation due to length of time and money to do so. Our Solictor said we have sole right of use and the freeholder/landlord would need to get permission to go into the garden / do any work etc.

    Sorry for all the information. I’m really concerned as I want a guarantee it is not a communal garden and we are the only persons allowed to use the garden.

    What it’s be situation with only our lease stating this and the other not mentioning the garden?

    #2
    When was the lease granted?

    Is the layout such that the garden can only be accessed from the flat?

    Comment


      #3
      Only your solicitor can give you a guarantee on whether or not, it is a communal garden.

      Comment


        #4
        Originally posted by Gordon999 View Post
        Only your solicitor can give you a guarantee on whether or not, it is a communal garden.
        I would tweak that to: Only someone with all the relevant information and sufficient legal knowledge can give an opinion on whether the garden is included in the lease.

        Comment


          #5
          I'm just a layman legally speaking but it seems plain to me that the garden isn't demised to your lease and so belongs to the freeholder.

          I imagine it is difficult to accept this when you have perhaps been sold a lie.

          Personally I would probably reduce my offer substantially on the basis that I was buying a property without a (legal right to a private) garden. You may be able to enjoy access and use of the garden in practice without this but you run the risk that any major investment made to it could be lost. Either that or just plain pull out.

          Comment


            #6
            Originally posted by wouldbebuyer2 View Post
            I'm just a layman legally speaking but it seems plain to me that the garden isn't demised to your lease and so belongs to the freeholder.
            This is potentially one of those cases where what is plain to the layman may not turn out to be the case.

            There are two possibilities here:

            One is that the garden is included in the demise by words implied into the lease by statute.

            The other is that the garden has become incorporated into the lease by long user.

            When I have the OP's answers to the questions posed in post 2 I should be able to offer an opinion.

            Comment


              #7
              Thank you for your responses.

              the lease was granted in 2006 and the current owners listed jt as private as they were apparently under the impression it was a private garden and have used it for the last 14 years without any other persons using the garden.

              the house has a small front drive, and a side access which is communal to the two separate entrances/doors to either flat. This communal side entrance has a gate to the garden. Although I think it is locked from inside so you would need to go through the property to unlock the gate - I’m sure that doesn’t make a difference.

              I did think that it was the freeholders due to it missing from the land registry. As this does not show on the land registry and was sold as a private garden would it be fair for us to go back & reduce our offer on the basis the garden isn’t legally owned by ourselves?

              does anyone know if that’s correct that the freeholder would need to get permission before entering or doing anything to the garden with the lease written as per my first post.

              thanks I really appreciate some other opinions and clarity on this!

              Comment


                #8
                Originally posted by Slj1108 View Post
                As this does not show on the land registry and was sold as a private garden would it be fair for us to go back & reduce our offer on the basis the garden isn’t legally owned by ourselves?
                If you aren't getting what the advertising of the property led you to think that you were getting, it is fair for you to reduce the offer.
                However, on legal matters like this it is definitely worth waiting for lawcruncher's opinion (in addition to taking advice from the solicitor you have employed), as this may affect whether you still feel that you need to reduce the offer, and if so by how much. It may be that the garden is already likely to effectively be considered to be a private garden attached to your lease.

                Comment


                  #9
                  When a tenant has a zone, whether inside or outside, which is not expressly included in the grant but which he has occupied there are two lines of argument he can plead to show the zone is included.

                  The first is that is included by operation of section 62(2) of the Law of Property Act 1925: https://www.legislation.gov.uk/ukpga.../20/section/62. The ambit of the subsection is very wide indeed and wide enough to include a garden to which the tenant has exclusive access.

                  The second is that if a tenant is granted a lease and occupies adjoining land belonging to the landlord the occupation is not deemed to be adverse if the land is occupied as an extension of his tenancy (as will be the case here). It has however been ruled that in such cases the additional land is deemed included in the lease and held on the same terms. - see here for a brief summary of the case: https://swarb.co.uk/smirk-v-lyndale-...-ltd-chd-1975/

                  As to the statute, section 62(4) provides that section 62(2) "applies only if and as far as a contrary intention is not expressed". From the information we have there does not seem to be any clear contrary intention expressed, but "the part saying landlord responsibility to maintain/repair garden" does not help. Whilst making the landlord responsible for something is by no means incompatible with it being included in the property demised, it would be somewhat unusual for a landlord to take on the responsibility for maintaining a garden intended to be included. If we couple with that that the plan shows the parking front and back it can be argued it is unlikely that the garden would
                  have been forgotten, though it cannot be ruled out. Equally though, if the intention was that the garden should be communal the omission of the grant of any right over it has to be considered an oversight. What also does not help is that access to the garden is not solely from the flat. If access was only from the flat that would more or less rule out it being communal.

                  As to the case, it might help if the statute does not apply. There would though be a question mark if the other flat was granted rights over the garden.

                  All in all, there is sufficient doubt to justify asking for a reduction in the price.

                  There may of course be more detail available to your solicitor. I suggest you ask him to consider whether section 62(2) or Smirk v Lyndale Developments has any application.

                  Afterthought: Is there a front garden which could be the garden referred to in the lease?

                  Comment


                    #10
                    Thanks, I will definitely pick my Solictor’s brain with the above information you have provided.

                    My Solictor has so far said that the garden isn’t in the other lease so we have exclusive access - I haven’t spoken to her directly yet and wanted to get some more insight/questions to put forward as to me I don’t feel secure enough that ‘just’ because a garden isn’t mentioned in the other lease it means it is ours - think I’m being overly cautious.

                    I have checked the lease re the garden maintenance I mentioned earlier, it says :
                    ’the expenses of maintaining repairing redecorating and renewing:’
                    ’the main entrances passages landings staircase and communal garden drying area and refuse storage (if any) of the building so enjoyed or used by the tenant in common as aforesaid.’

                    there isn’t a front garden the front part in red is our front parking and at the back one parking space behind back garden fence

                    really appreciate your advice in what I’m finding a stressful situation.

                    Comment


                      #11
                      Can you for comparison scan and upload the lease plan?

                      " I don’t feel secure enough that ‘just’ because a garden isn’t mentioned in the other lease it means it is ours"

                      That is certainly not the case, I think that all your solicitor is doing is ruling out the possibility that the other flat has any rights.

                      ’the main entrances passages landings staircase and communal garden drying area and refuse storage (if any) of the building so enjoyed or used by the tenant in common as aforesaid.’

                      I hate "if any" in that sort of context. It is a very lazy way of doing conveyancing. In this case we do not know how far back the words relates. It is also not clear if the reference is supposed to be to both a communal garden and a drying area or to a drying area in a communal garden.

                      Comment


                        #12


                        I have attached the plan from the lease.

                        The wording is very annoying as there is no punctuation throughout the lease so not so clear. If any also not clear either

                        If we have exclusive right to use the garden then I would proceed with the sale .. I just don’t want this to come back and bite us when we go to sell or the garden is going to end up being shared with someone else.

                        I assume we wouldn’t get anything confirmed by the managing agent/freeholder unless we were prepared to do a deed variation?

                        Comment


                          #13
                          This is a classic case where ideally some documentation is required, but alerting the freeholder may set the cash registers ringing or even bring an assertion that you cannot go onto the garden without committing a trespass. If the seller has effectively enjoyed exclusive occupation it may be better to let sleeping dogs lie. I think you have to "take a view". As an absolute minimum though you need a statutory declaration from the seller to the effect that he has enjoyed exclusive occupation. That will not make the problem go away, but if you get a reduction you will be compensated in advance.

                          If you are getting a mortgage your solicitor may not feel able to approve the title on behalf of the lender.

                          Comment


                            #14
                            Thank you Lawcruncher. Waiting for my solicitor to get back to me at the moment.

                            Probably being daft but I wasn’t sure what you meant by ‘but if you get a reduction you will be compensated in advance.’

                            Comment


                              #15
                              Originally posted by Slj1108 View Post
                              Probably being daft but I wasn’t sure what you meant by ‘but if you get a reduction you will be compensated in advance.’
                              Assume the value of the property with the garden is £100,000 and without is £95,000. If you pay £95,000 you can consider you have bought the property without a garden for that price. If when you come to sell you get a price which reflects that the property has no garden you will not have lost out as you will be getting a price which reflects what you consider you bought.

                              Comment

                              Latest Activity

                              Collapse

                              Working...
                              X