Gardens Included in the Flat Sale - Misadvertisement

Wlodkowa · 12 October 2017 at 10:15AM

Good Morning.
I am in process of buying 1 bed flat (lease) that has been advertised with 2 small gardens. After reviewing the Title Plan, I turned out that the gardens do not belong to the flat and the current owners have had only the access rights to use them. Unfortunately, the seller, who wants to go through the quick sale, is not willing to go through the process of Deed of Variation and assign the gardens to the flat. I have been advised by my solicitor, that the gardens' land belong to the Landlord and even thought we as the Lessees will gain access right to those gardens, Landlord can do as he pleases with that land. The interesting thing is that to one of the gardens, you can only gain access through the bedroom, while the other garden, you need to go through to enter the flat. The seller has been owning the flat for 4 years now and he has been using the gardens undisturbed.I am still willing to purchase the flat, however I am not quite sure what may be likelihood that the Landlord would start using the gardens' land and for what purpose and does it usually work in practice in situations like that?

The other concern of mine is the price. The price I offered for the flat was with the gardens included and since the situation in that regard has changed, I would like to renegotiate the price with the seller. Would anyone know how much value may the garden land of 35m2 add to the flat?

Regards

G_M · 12 October 2017 at 10:30AM

It sounds like the current informal arrangement whereby the leaseholder has exclusive undisturbed use of the gardens is likely to continue, given the access and location.

Probaby just a poorly set-up lease originally.

Having said that, the legal position is such that the freeholder could change things, and either start using the garden(s) himself, or sell off a lease to the garden(s) to a 3rd party.

A key factor might be the access. Is there any other access, either current or potential, to the rear garden, apart from your bedroom? If not, it would be impossible for the freeholder to do anything since he'd need your (or the leaseholder's) permission to go through the bedroom!

As to value - not very much. Especially given that in reality the leaseholder will have use of the garden(s).

What's the market value of the flat at present?

Out,_Vile_Jelly · 12 October 2017 at 10:37AM

Sounds a complete mess. The vendor is unlikely to get a sale at the price they want until these legalities are sorted. Walk away until this is clarified.

Ozzuk · 12 October 2017 at 11:59AM

If you end up not owning it you'll want to know who is maintaining it, what you can do with it - can you put shed in, plant flowers, seating etc.

Wlodkowa · 12 October 2017 at 12:29PM

Thank you for your response.

The only access to the back garden is via the bedroom. The other one that is in front you need to access via separate doors that lead to the entrance to the flat. There is the storage in there that the current owner uses. The flat with the gardens has been advertised for £260,000. I have proposed the reduction of £15000 and the written consent from the Managing Agent that I will have the only access to the gardens. Currently, my solicitor is in the process of confirming that the Managing Agent is in charge of the garden lease.

I have also found out today that flat was actually under an offer in July 2016 and now I really reluctant to believe to he was aware that gardens were not included in the lease.... I do not want to be tactless, but I would like to mention this to the Estate Agents if the seller will be reluctant to reduce the price by what I have proposed.

I am slowly getting frustrated with the situation. I am the first time buyer and before I made my offered for this flat, my previous sale fell through because of the lack of document needed to complete the sale and seller being very uncooperative thought the sale, in which case I decided to walk away. I am able to accept the fact that this flat does not have leased gardens as long as the price is reduced and followed on this on my own after competition.

Regards

Wlodkowa · 12 October 2017 at 12:31PM

Thank you for your response.

Yes, they are. I only hope that this will get sorted.

I never imigined how difficult it is to buy a flat:)

Regards

Wlodkowa · 12 October 2017 at 12:34PM

Thank you for your response.

I have found out who is the Managing Agents that are willing to provide in writing that I will be the only one having the access to the gardens.

I would rather not be interested in putting the shed as there is plenty of storage, but this is good point I have overlooked to check. Thank you that suggestions.

eddddy · 12 October 2017 at 12:46PM

Wlodkowa wrote: »

I have found out who is the Managing Agents that are willing to provide in writing that I will be the only one having the access to the gardens.

That doesn't sound very likely - are you sure that you've understood correctly?

Will you be entering into some kind of a contract with the managing agent? Or will the managing agent enter into a deed with you? (And why would the managing agent do it - are you paying them?)

Wlodkowa wrote: »

... I have been advised by my solicitor, that the gardens' land belong to the Landlord and even thought we as the Lessees will gain access right to those gardens, Landlord can do as he pleases with that land.

If the lessees have access rights to those gardens (based on their leases), the managing agent cannot take away those access rights.

LEJC · 12 October 2017 at 12:53PM

Who is responsible for the maintenance of the area...that can sometimes give an indication of who can use it.

Presumably if there is a contract for maintenance you will be required to allow access through your bedroom each time they wish to cut the grass.

Wlodkowa · 12 October 2017 at 12:57PM

This is something I might have got confused with.
My solicitor advised me that Landlord owns the land on which gardens are and as per flat lease we have the right to use the gardens and any persons we authorise to use it and pass etc. The Estate Agents claims that the Managing Agent has lease for the gardens and MA are willing to the provide additional confirmation for me in regards to my access right to the gardens.

LEJC · 12 October 2017 at 1:03PM

But access rights are different to the gardens being included in the purchase of the property.

Put yourself in the position of not being the buyer at this point,but being the seller in 4 years time....potentially the very same issue unless resolved satisfactorily now is likely to rear again when you come to sell the property and indeed buyers raise the same concerns as you are now.

You need to be clear that you are either buying a property with a private garden or a property with communal access....and there is a big difference

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Gardens Included in the Flat Sale - Misadvertisement

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