Leaseholder occupying common space.

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    Leaseholder occupying common space.

    Hello all. Can a leaseholder occupy, ie put a gate across with a " no trespassing" sign, and segregate as her own, the end of a passageway, which is clearly expressed as retained to the Landlord. The sign was put up to specifically bar the Landlord from entry, as she had paid to replace the decking floor area, and therefore felt it was her own, and that we had no entitlement to use of this retained space.
    We have bought a house with a Leasehold house underneath. The leaseholder has a clearly expressed right of way in common with the landlord over a passageway leading to the demised property.
    Can she get away with this?

    #2
    Originally posted by Glnngrg64 View Post
    Can she get away with this?
    Yes - if she isn't challenged about it.
    The freeholder can instruct her to remove the gate (and the decking) and remove it themselves and then charge her for removal and disposal if they refuse to remove it themselves. They will need to be given sufficient warning that this is what will happen before the freeholder goes ahead with any removal, and they may need to retain anything that is removed to allow it to be claimed before disposing of it.

    On the other hand, anyone who has a legal right to access the area cannot be trespassing, so you can continue to cross the area despite the gate.
    It sounds like your property may have no rights to 'use' the space, only to cross it.

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      #3
      Originally posted by Macromia View Post
      Yes - if she isn't challenged about it.
      The freeholder can instruct her to remove the gate (and the decking) and remove it themselves and then charge her for removal and disposal if they refuse to remove it themselves. They will need to be given sufficient warning that this is what will happen before the freeholder goes ahead with any removal, and they may need to retain anything that is removed to allow it to be claimed before disposing of it.

      On the other hand, anyone who has a legal right to access the area cannot be trespassing, so you can continue to cross the area despite the gate.
      It sounds like your property may have no rights to 'use' the space, only to cross it.
      Our Lease agreement describes this space as retained space ( of the Landlord) and that she has been granted a right of way, on foot only, in common with the Landlord. She is in breach of the Lease insofar as she's modified her boundary without her Landlords permission.

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        #4
        What the lease describes, and whether or not the leaseholder is in breach of the lease is completely irrelevant if the freeholder allow the situation to continue.

        Your question was "Can she get away with it.", and the answer is that she can - until the freeholder decides they are going to take action and insist that she removes the gate (and potentially the decking).
        As a leaseholder you can probably do virtually nothing about it, unless your lease is one allows you to take action against other leaseholders. You can ask the freeholder to take action, but they may then be allowed to require you to accept the cost of any legal action that is required.

        Unless this is causing you problems, for example by making access to your property difficult, of because it increases costs that you have to pay, it may be something that it is better for you to ignore.

        If you are the freeholder the situation is different and you can take action - starting by writing to the leaseholder warning them that the area is not theirs and that they need to remove the gate (and decking if that is what you wish).
        The decision you have to make if you are the freeholder is whether this is worth the time and expense, and the problems that having a hostile leaseholder may cause in the future. If you can come to some sort of amicable solution that would be far preferable.
        Does this passageway need to be used by anyone else? Is not accessing it regularly really going to cause problems? Perhaps the best solution is to allow the gate and decking stay but to make it clear that you will access this area for maintenance whenever you need to, and that you will expect the gate to be removed when the flat is sold with any damage made good (put this in writing and keep a copy).

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