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  • FIRST POST
    • Wlodkowa
    • By Wlodkowa 12th Oct 17, 10:15 AM
    • 12Posts
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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 2
    • chappers
    • By chappers 12th Oct 17, 3:16 PM
    • 2,650 Posts
    • 1,500 Thanks
    chappers
    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.
    Originally posted by Wlodkowa
    Forget what they say, what does the lease say. If the lease doesn't mention access then the permission you have is informal and can be removed at any time.
    I assume that the arrangement is informal as you mentioned obtaining a deed of variation to the original transfer. If the freeholder is agreeable I would go down this route, it shouldn't take that long, would be written up by the vendors solicitor, be signed by the freeholder assuming the same freeholder as the original transfer and then agreed by your solicitor as kosher and written into the title at completion.
    5h1tty leases like these make my blood boil and only slightly less than when compared to the even 5h1ttier conveyancers who let these things go

    Can the gardens not at all be accessed from anywhere other than your flat, for example could a gate be put into a wall or fence, that might affect your decision here, for example regardless of the cost of the property being reduced to reflect that you don't have access or ownership of the garden, how would you feel if the freeholder started dumping rubbish there or working on old cars etc.
    You need to protect yourself by either getting ownership or prescribed access.
    • Tom99
    • By Tom99 12th Oct 17, 3:56 PM
    • 207 Posts
    • 86 Thanks
    Tom99
    My daughter had exactly the same situation. Private fenced in garden was actually in the lease a communal garden shared by all the flats.

    We knocked £2,500 off the £145,000 price and just accepted the situation.

    The garden was used privately until sold 5 yrs later but it was also a problem on the sale and we lost one buyer because of it.

    The problem you might have is that all the other flats have leases which grant them access or use of the garden and all the leases and the freehold title would need to be changed which would be a nightmare.
    • AnotherJoe
    • By AnotherJoe 12th Oct 17, 4:05 PM
    • 7,367 Posts
    • 7,902 Thanks
    AnotherJoe
    Thank you for your response.

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

    I never imagined how difficult it is to buy a flat

    Regards
    Originally posted by Wlodkowa
    Think forward, to when you want to sell it and the freeholder is wanting a nice big chunk of cash from you to legalise this scenario.

    Walk away.
    • Wlodkowa
    • By Wlodkowa 12th Oct 17, 4:16 PM
    • 12 Posts
    • 0 Thanks
    Wlodkowa
    There is definitely a possibility for the gate to be put in the rear garden.
    Could it be the case that the current owner put the fence himself and started using that part of the land as him own garden????
    The flat is in the block of flats and ground flats in other blocks of flat all have gardens that are fenced from the other communal gardens areas and I using them as the private gardens. Is it possible that they again fenced that land themselves and started using it as the private gardens?

    Here is what the lease says:

    “the right for the Lessee and all persons authorised by the Lessee (in common with the all other persons having the like right) to go pass and repass on foot over and along the entrances, passages and landings giving access to and egress from the dwelling and over and along all paths laid out on the Estate;

    “the right for the Lessee and all other persons authorised by the Lessee (in common as aforesaid) with our without motor cars and other vehicles at all times by day and night and for all purposes to go pass and repass over and along the road and access ways laid out on the Estate;
    !
    “the right for the Lessee and all other persons authorised by the Lessee (in common as aforesaid) to use the gardens and other communal amenity areas on the Estate as shown on the plan
    The “Estate” is defined as:
    !
    “the property comprised in the title to which the property is situate in Union Road and Pump Close in the London Borough of Ealing and is for the purpose of identification only shown on the Estate Plan and thereon Edge Blue (see attached)”
    • chappers
    • By chappers 12th Oct 17, 5:37 PM
    • 2,650 Posts
    • 1,500 Thanks
    chappers
    Are the gardens in question within the area edged blue ?

    the right for the Lessee and all other persons authorised by the Lessee (in common as aforesaid) to use the gardens and other communal amenity areas on the Estate as shown on the plan
    The “Estate” is defined as
    :
    Is this clause common to all the leases?

    If the answer to both these questions is yes, then you have a right to use the space as a garden and the freeholder almost certainly can't prevent that right, but then again so does everyone else who has that clause in their lease. However, if you are the only one who really has access to the gardens in question then effectively you are the only ones who can use them. Unless someone wants to vault the wall or abseil down from the upper floors
    • Wlodkowa
    • By Wlodkowa 13th Oct 17, 7:19 PM
    • 12 Posts
    • 0 Thanks
    Wlodkowa
    The area is edged blue.

    What has actually turned out today (pending full confirmation) that the Landlord has granted the lease for the gardens to the Managing Agent via Superior Lease who in turn grander it to the vendor via Under Lease. I am pending the confirmation whether the Managing Agent is the owned of the gardens' land as well.
    • Tom99
    • By Tom99 13th Oct 17, 11:40 PM
    • 207 Posts
    • 86 Thanks
    Tom99
    In my daughters situation which was identical to this, we got a sworn statement from a long term neighbour which stated how long the area had been used as a private garden and which fence was in place where, for the flat we were buying. I have no idea how useful it might have been but we thought it would add to our argument if ever another party wanted to exercise rights over the private garden.
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