Can we all use the garden? freehold title is separate from the leases

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    Well the answer to all the questions is to start and end with the actual leases for all flats to see who is responsible for, or has rights to whatever issue you have.

    It will explain what rights if any of the flats have over the garden, how and when service charges are calculated and billed and costs spent are accounted for.

    In the case of the damp basement I can see his point and this has the making of a real bun fight. if the external walls and sub floor are the responsibility of the freeholder, and there are existing damp measures in place, then it is likely that the leases will obligate the freeholder to repair it, and for other flats, in most cases, to contribute. it will need careful handling as a common problem is the lack of a partnership agreement or declaration of trust in these cases so that the three owners of the freehold have no rules between them on decisions and disputes.

    I appreciate the request however its best to keep questions on the forum as that it what it is here for and therefore should be no issues of confidentiality or detail that need not be disclosed.

    You do have a steep learning curve so make use of the stickies at the start of the leasehold forum and the advice guides at LEASEadvice especially section 20 and the library at ARMA
    Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.


      Originally posted by ram View Post
      So coolhands, forget the garden, get the money in.
      Okay, I understand this now. But I agree with lha - all issues need to be resolved together, and the OP needs to know a LOT more about what he and the other properties are entitled to than they know at the moment...


        Originally posted by coolhands View Post
        ps if I can legally use the garden it would increase the value of my flat by a hell of a lot more than £5.5k so the garden is quite important!
        No, no, no, no.

        You have it wrong .....

        You are hoping the use of the Garden will increase the value of your flat to offset the maintenence charges you have just paid out.

        Upon sale, you do not increase the value of your flat to include service charges you have paid out.
        I do not add the service charge thousands to the price of my car or secondhand washing machine.

        That's what this Garden thing seems to be all about, getting the service charges back on the sale of a flat !
        Granted, you need to come to a conclusion on the garden, by reading ALL leases, but the way I read this, you want your money back by increasing the value of the flat to pay for the service charges.

        If you reply, own up to the possibility that you are thinking this.

        On the other subject, How do I get bottom flat to pay service charges if he does not pay.....
        Sorry, but you need to read, learn everything.
        Letters written stateing you wil take them to court if monies not paid withing 30 days ( After you have issued the service charge demands and Summary of rights )



          thanks for everyone's help. I will indeed reply as and when I make progress

          I understand how it looks, however that is not my motivation (some kind of payback for roof cost). I have owned this place since 2002, and would always have liked to have use of the garden since day 1, but we always assumed it was for the basement flat. Ironically no-one who ever rents the basement flat uses the garden, it is an eyesore. Of course I would like to know we have all got the same rights to the garden as it would increase the value of my flat - who wouldn't? But the reality is it means I could go out there and clear it up, get rid of the rotten shed (roof missing!) and actually replace the knackered fence.

          For the roof - I knew he would not want to pay - but I quite like looking after buildings (and cars etc) properly - hence why the ruinous back garden is so disappointing, so there would never be any question of me not wanting to help pay for it with the upstairs chap, whereas the basement chap is the sort of person who never wants to pay for anything.

          Thanks to this forum I now know I need to read (of have read by an expert!) the full leases for all flats, and then go from there. To this end I have already contacted the solicitor I used when we purchased the freehold, he is going to find the old files in the next few days and hopefully get back to me. I have also contacted an ARMA registered property management company to ask their advice about whether we should set up a resident management company and costs for them to manage it etc so will see what they say.

          I admit I'm no expert as I expect thousands of flat-owners aren't! It's not something any regular person knows much about, and when (for example) you start reading through the lease trying to understand it is nearly impossible!



            Originally posted by ram View Post
            Sorry, but you need to read, learn everything.
            Letters written stating you will take them to court if monies not paid within 30 days ( After you have issued the service charge demands and Summary of rights )
            yeah none of us have ever issued / demanded or paid service charges! to ourselves or one another. We simply did nothing, and didn't worry about it! (foolish, obviously)


              Don't wory about being told off on here, as we were all in the same boat as you at one time, we sometimes shout / argue in the hope that people will "get their finger out", shock them into action, as the same questions / problems come on here month after month / year, and we feel so helpless in seeing many in your possition, time after time, hence our forceful recommendations.

              At least you are doing something about the other problem - Managing the place.



                The freeholder is of course the 3 of you A +B +C, with a freehold subject to leases granted to each flat owner.

                There is therefore no need to transfer it into a company as the leases as well as the law set out your obligations regardless of how it is owned.

                While a company has some disbenefits with basis administration and returns etc, it does have the advantage in giving a ready made decision making structure and makes the transfer of flats easier through shares or membership. However that can e achieved with agreement as set out earlier.

                This is a common omission and frankly all 3 would have to agree to either option which at this stage is unlikely so it is a moot point*.

                NB No ARMA agent should be advising you on the wording of the Articles or other agreement beyond broad items for inclusion- leave it up to the lawyers to do that. In many cases a standard worded flat management company can be bought on line for £35 or more via a company formation agent, but amendments should not, as they used to say on TV “ don’t try this at home” without legal advice.

                Past Service Charges

                While RAMs point on robustly pursuing service charges is an option you have as any good negotiator knows, have to judge the other person position, and right now he wants damp proofing and you want roof monies.

                You have to clarify the lease position on damp works, and he has the slight advantage in that were you to pursue monies, he has the defence of time barring of 18 months and the lack of consultation under S20 et seq of the LTA 1985, which might prevent you from getting more that £, or no more than £250.

                That it wasn’t discussed and agreed as freeholder and with him, you likely don’t have any argument for any waiver of those rights.

                You therefore have to prepare and think about how, and to what they will respond, before deciding to talk or put (RAM’s) boot in.

                Once this is resolved then perhaps that is the time to talk about regularising your operational structure into a company to other deed or agreement.

                By all means pass these posts of mine on to the lawyer and agent.
                Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.


                  Hi I would really appreciate it if you could comment. I feel completely inadequate and don't understand all about this.

                  I have been chasing my solicitor to find out what the leases say. This is how long it has taken! He has finally got back to me today. What he said is this:
                  Originally posted by solicitor
                  Please find attached a plan of the lease for flat A, you will note the garden is NOT shown as being their exclusive property,

                  Kind regards
                  He then attached the following, (I have cropped from the title). The 'Title plan' is the same number as the one I already had got from the electronic download that you pay £7 for.
                  However it did have one page before this title plan which had the following which at least indicates it is an official copy whereas the downloaded version I had was not. But the picture etc is the same.

                  So, is this any use / does it mean anything further? I had been asking for a copy of the full leases as I understood from what has been written previously that the answers to the use of the garden would actually be in the wording of the lease. I have a feeling this solicitor is just no good at this lease stuff? I've been waiting and waiting and all I've got is the same diagram I had before!! I don't know why he has ignored my request for the actual wording of the leases. Judging from the timestamp he has only just requested this copy, so why not give me the wording which I've been pressing for?

                  I had a look at OC2 form to be honest I wasn't sure how exactly to fill it in for what I need. If I post more details later would one of you kindly help me fill it in so I can apply for a copy of the full leases myself?
                  Attached Files


                    The above is a general caveat that it is not "inch perfect". The plan here clearly indicates ( in the absence of seeing any other reference in the lease to the garden or a different plan in the lease) that the title was intended to refer to a flat within the building No 14, and exclude the garden.
                    Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.


                      Hi. Regarding the garden (which I had though of previously as being for the basement flat);

                      well I finally got a copy of the lease for the basement flat. It has the following diagram in it, and in the schedule it states in Part 3
                      Originally posted by Schedule
                      The Demised Premises: ALL THAT Lower Ground Floor flat situate and known as Flat (xxx basement...address) NW10 in the London Borough of xxx as the same is for the purpose of identification only edged red on the attached plan

                      The only other thing referring to any other land is this bit about the yellow referred to in the main part of the lease in the following section:
                      Originally posted by lease
                      NOW THIS DEED WITNESSETH as follows: 1) IN consideration of the same specified in Part 7 of the schedule [that looks like the price paid for the flat at that time] herto now paid by the Lessee to the Lessor (the receipt whereof the Lessor herby acknowledges) and of the rent and covenants on the part of the Lessee herinafter reserved and contained the Lessor HERBY DEMISES unto the Lessee ALL THAT the Demised Premises TOGETHER WITH the following rights in common with the Lessor and occupiers of any other flat in the Building: a) Rights of way over such parts of the Building and of the Estate as afford access to the Demised Premises shown coloured yellow on the said plan
                      So in the leases all three flats have their demised premises outlined in red - which in each case is purely the building (ie the outline of the actual brick building); the yellow is common access for maintenance etc as in accordance with the lease; and the blue outlines the Estate as belonging to the Lessor. None of the lease copies have any reference to use of the garden. I conclude therefore that each of us has as much right to it as each other, since we all jointly own the title (freehold) which grants the leases (and no mention of use of the garden is mentioned anywhere).

                      I have an appointment monday morning with a property solicitor to confirm what I think (or not!) as of course all the legalise is difficult for me to read accurately. So bonus if we can all use the garden! Thanks for reading, I will confirm the final outcome just for future reference and searches of what the solicitor says.


                        So far it seems that each flat is marked ion red and the BF has an area marked in yellow to allow access etc to and from the flat. The other aspect is not whether the lease allows you to use that remaining garden, and access to it, nds as perverse as it sounds, absent that right , or an acquired one, "it is only for looking at".

                        In that you are freeholders, then you are fortunate to have a different hat, and, as freeholders, can use the garden.
                        Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.


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