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  • FIRST POST
    • Wlodkowa
    • By Wlodkowa 12th Oct 17, 10:15 AM
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    Wlodkowa
    Gardens Included in the Flat Sale - Misadvertisement
    • #1
    • 12th Oct 17, 10:15 AM
    Gardens Included in the Flat Sale - Misadvertisement 12th Oct 17 at 10:15 AM
    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
Page 1
    • G_M
    • By G_M 12th Oct 17, 10:30 AM
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    G_M
    • #2
    • 12th Oct 17, 10:30 AM
    • #2
    • 12th Oct 17, 10:30 AM
    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
    • By Out, Vile Jelly 12th Oct 17, 10:37 AM
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    Out, Vile Jelly
    • #3
    • 12th Oct 17, 10:37 AM
    • #3
    • 12th Oct 17, 10:37 AM
    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.
    They are an EYESORES!!!!
    • Ozzuk
    • By Ozzuk 12th Oct 17, 11:59 AM
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    Ozzuk
    • #4
    • 12th Oct 17, 11:59 AM
    • #4
    • 12th Oct 17, 11:59 AM
    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
    • By Wlodkowa 12th Oct 17, 12:29 PM
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    Wlodkowa
    • #5
    • 12th Oct 17, 12:29 PM
    • #5
    • 12th Oct 17, 12:29 PM
    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
    • By Wlodkowa 12th Oct 17, 12:31 PM
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    Wlodkowa
    • #6
    • 12th Oct 17, 12:31 PM
    • #6
    • 12th Oct 17, 12:31 PM
    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
    • By Wlodkowa 12th Oct 17, 12:34 PM
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    Wlodkowa
    • #7
    • 12th Oct 17, 12:34 PM
    • #7
    • 12th Oct 17, 12:34 PM
    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
    • By eddddy 12th Oct 17, 12:46 PM
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    eddddy
    • #8
    • 12th Oct 17, 12:46 PM
    • #8
    • 12th Oct 17, 12:46 PM
    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.
    Originally posted by Wlodkowa
    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?)


    ... 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.
    Originally posted by Wlodkowa
    If the lessees have access rights to those gardens (based on their leases), the managing agent cannot take away those access rights.
    • LEJC
    • By LEJC 12th Oct 17, 12:53 PM
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    LEJC
    • #9
    • 12th Oct 17, 12:53 PM
    • #9
    • 12th Oct 17, 12:53 PM
    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.
    frugal October...£37.39 of £40 food shopping spend for the 2 of us!

    2017 toiletries challenge 143 out 121 in ...£14.92 spend
    • Wlodkowa
    • By Wlodkowa 12th Oct 17, 12:57 PM
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    Wlodkowa
    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
    • By LEJC 12th Oct 17, 1:03 PM
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    LEJC
    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
    frugal October...£37.39 of £40 food shopping spend for the 2 of us!

    2017 toiletries challenge 143 out 121 in ...£14.92 spend
    • Wlodkowa
    • By Wlodkowa 12th Oct 17, 1:03 PM
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    Wlodkowa
    However contradictive it may sound, the gardens is tiled, but if the access has to be granted for the maintenance purposes, I do not mind. The only concern of mine would be more in regards to the other front garden. To enter the flat, one would need to enter separate doors that lead into the front garden that lead to the main entrance to the flat. In that garden there is the under stair storage and I would like to know whether the Landlord or Managing Agent may decide to allow someone else to use that storage for instance, in which I may end up having some strangest in there that absolutny do not want.
    • Wlodkowa
    • By Wlodkowa 12th Oct 17, 1:09 PM
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    Wlodkowa
    In the light of the current situation, I would be buying the flat with the communal gardens. The seller (he want to leave UK soon) is not willing to wait long enough to sort this problem that was initially my intention. However, because he want to complete by next month, I am willing to still purchase it as long as the price is reduced and I can be certain that I will be the only person to have access to the gardens except for the Managing Agents. Not sure whether it is possible at all.
    • LEJC
    • By LEJC 12th Oct 17, 1:17 PM
    • 9,220 Posts
    • 57,783 Thanks
    LEJC
    In the light of the current situation, I would be buying the flat with the communal gardens. The seller (he want to leave UK soon) is not willing to wait long enough to sort this problem that was initially my intention. However, because he want to complete by next month, I am willing to still purchase it as long as the price is reduced and I can be certain that I will be the only person to have access to the gardens except for the Managing Agents. Not sure whether it is possible at all.
    Originally posted by Wlodkowa
    I think you are asking 2 conflicting things...

    on one hand you are saying you will buy with communal rights but then go on to say you need to be certain only you and the managing agents have access.

    its a choice at the purchase stage of one or the other.....one I believe will be more costly and possibly protracted to achieve at this stage but if you can achieve,it will make the property much more attractive to both you and potential buyer in the future.

    Is the vendor willing to negotiate on price?
    I understand that you say they are keen to wrap this up but it doesn't automatically follow that they will accept a lower offer.
    Last edited by LEJC; 12-10-2017 at 1:20 PM.
    frugal October...£37.39 of £40 food shopping spend for the 2 of us!

    2017 toiletries challenge 143 out 121 in ...£14.92 spend
    • eddddy
    • By eddddy 12th Oct 17, 2:18 PM
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    eddddy
    I think you are a little confused about how leases work.

    Picking through your posts, it sounds like this is the situation:
    1. You want to buy the lease of a flat from person A.

    2. You want to buy the lease of the garden from person B. (You say that person B is the Managing Agent - I suspect it may be the freeholder.)

    3. Other leaseholders currently have access rights to the garden (stated in their leases) - you want them to give up those access rights.
    If that's correct that is a massively complicated problem.
    • How will you persuade the other leaseholders to agree to give up their rights to the garden? Will you offer them so much money that they can't refuse?
    • You'll have to pay solicitors fees to have all their leases varied.
    • Plus you'll probably have to pay the managing agent/freeholder for the new lease of the garden.


    As a final note - you seem to be relying on what the Estate Agent tells you. In England, Estate Agents are not usually professionally qualified and licenced like they are in Poland. They don't have to pass any exams. Sometimes some Estate Agents talk rubbish.

    I think your Estate Agent may have been talking rubbish to you. You should only rely on what the solicitor says - they are professionally qualified.
    • Wlodkowa
    • By Wlodkowa 12th Oct 17, 2:20 PM
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    Wlodkowa
    I think I finally understand what you mean. If I continue with the access to communal gardens, I will not have certainty that I will be the only one having access to the gardens. Only in the case of the seller agreeing to go through the process of the Deed of Variation and include the gardens in the sale, u would have certainty to be the only one accessing gardens. Am I understanding this correctly now?
    Yes, the seller is willing to drop £10000 now, but I'd like to Jim to reduce more or at least include some furniture in the sale on the top of the £10000 reduction.
    • eddddy
    • By eddddy 12th Oct 17, 2:32 PM
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    eddddy
    Only in the case of the seller agreeing to go through the process of the Deed of Variation and include the gardens in the sale, u would have certainty to be the only one accessing gardens.
    Originally posted by Wlodkowa
    That is not for the seller to agree.

    He doesn't own the garden, so he cannot include it in his lease, and he cannot sell it to you.
    • Wlodkowa
    • By Wlodkowa 12th Oct 17, 2:34 PM
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    Wlodkowa
    I might be confused, I agree. That is a lot of information to absorb. I am not as such relying on what EA say. I do realise now that EA tend to say what the buyer wants to hear. I am in the process of verifying with my solicitor what the EA have proposed to solve the garden issue.

    I understand that I am buying the lease for the flat only from the seller. Gardens are likely to be owned by the freeholder that instructs the Managing Agents to take care of both the flat and the gardens and it'd be MA to contact freeholder regarding any changes to lease/title plan????
    • Wlodkowa
    • By Wlodkowa 12th Oct 17, 2:39 PM
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    Wlodkowa
    I agree and I realise that this decision lays with the freeholder and my initial plan was to request the seller to include the gardens in the purchase of the flat and therefore go through the Deed of Variation with the freeholder, in which case the purchase price would reflect what was advertised. Unfortunately, he is reluctant to wait such a long time for the whole process to complete, in which case I may purchase the flat as it is at the reduce price and contact the freeholder my self and make enquiries in regards to purchasing the lease for them.
    • eddddy
    • By eddddy 12th Oct 17, 2:46 PM
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    eddddy
    Gardens are likely to be owned by the freeholder that instructs the Managing Agents to take care of both the flat and the gardens and it'd be MA to contact freeholder regarding any changes to lease/title plan????
    Originally posted by Wlodkowa
    No - it's much, much more complicated than that.

    I'll try to put it more simply.

    The other leaseholders have paid a lot of money for their leases. Because they paid that money, they can use the garden for the next 100 years (or whatever the lease length is).

    How will you stop them using the gardens for the next 100 years?

    You and the managing agent cannot take away other people's gardens.
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