Freehold Property Ownership Clarification

rockera

Hi,
I am purchasing a ground floor maisonette of a converted house - the first floor being a seperate flat . The property is freehold - the free hold being shared between me and the owner of the first floor flat.

All along we were told by the seller/agent that the rear garden is divided into two sections and and both flats ''own'' a private section of the garden exclusively.

To our horror and surpirse, I have only today received the contract and lease documents (which I have not signed) , as per which , the garden is communal and is for shared use by both flats !

The seller is still sticking to his view that the garden is not communal - though the lease doesnt state that !

Could you help me with the following as I am a first time buyer and have very very limited knowledge of how these things work

(A) Is it possible for an agreement outside the lease to demarkate the garden into equal sections for exclusive use?

Failing the above,at a later stage, can both freeholders LEGALLY agree to demarkate and ''claim'' ownership of their individual sections of the communal garden? f yes, then please advise if this is a straightforward issue.


(B) Under shared freehold laws, would I need to take permission of the other owner of the freehold before making any alterations to even my part of the flat ?

(C) Is it common to have 'communal gardens' shared between owners of freehold in the London area ? I am basiscally trying to ascertain ,if this is normal or I am faced with this odd situation..


I will be EVER so greatful for your help and advice as I have very limited time before which I would need to decide either way.

Many thanks

cattie

It is very usual to have a garden deemed as communal in London both as a shared comlete garden, or a garden that is demarked in some way with a boundary, such a fence, for each section allocated to leaseholders.

As you are both joint freeholders it should be fairly simple for you to each agree to set out such a boundary for the portion of garden you are each to use.

You may find these people helpful with regards to your queries regarding legalities of amending the lease. http://www.lease-advice.org/newintro.htm
It's a government funded agency offering help & advice covering most areas of residential leasehold property.

EdInvestor

rockera wrote:

All along we were told by the seller/agent that the rear garden is divided into two sections and and both flats ''own'' a private section of the garden exclusively.

This is not usual

To our horror and surpirse, I have only today received the contract and lease documents (which I have not signed) , as per which , the garden is communal and is for shared use by both flats !

This is normal.It's also normal for the garden to be for the exclusive use of the flat on the garden level (basement or ground floor)

(A) Is it possible for an agreement outside the lease to demarkate the garden into equal sections for exclusive use?

I guess you could try, ask your solicitor

Failing the above,at a later stage, can both freeholders LEGALLY agree to demarkate and ''claim'' ownership of their individual sections of the communal garden? f yes, then please advise if this is a straightforward issue.

Again ask solicitor.

(B) Under shared freehold laws, would I need to take permission of the other owner of the freehold before making any alterations to even my part of the flat ?

THe rule on this should be covered in the lease

rockera

I have asked the solicitor for these clarifications. From what you are saying , it seems that changes can agreed and made amongst freeholders of a property to demarcate and own sections of a garden - even if the original lease states that the garden is for communal use ?

rockera

The first floor flat has to access the garden from outside ie not through our house.

Meanwhile, I have asked my current solicitor to check if there's anything in the deed which legally inhibits a fair division of the garden.

The solicitors initial reaction was that it 'might' be possible for the deed to be changed but obviously that involves a seperate process of involving the land surveyors and re-doing the deed.

Two questions -

A.Can the deed on be changed under the current transaction ie when I am buying it ?

B.If it is better to go through with exchaning the contracts now, and then following-up with the work on legl division of the garden - any idea on how much can it cost in legally re-doing the deed with demarked gardens.


Appreciate if anyone who does this sort of lease-work can reply with a quote and an approximate idea on how long this process could take.

Many thanks

courtjester

Can't help you on the costs of amending leases etc, but should not be too great if the parties agree and instruct the solicitors of the changes required.

My advice would be to get any changes done before agreeing to purchase the property - you are buying the flat under the terms of the lease you accept and there is no guarantee that you can obtain the other occupants agreement post-sale.

It is the current vendor's responsibility to arrange any changes to the lease before sale, at their expense if they wish to sell to you - there is nothing wrong in making this a term of your offer.

If the lease differs from what you have been told by the agent (or the vendor) as regards the division of the garden, it is the lease which is the deciding document - what is says in there is what you are buying, ignore any verbal statements to the contrary, so if the lease does not outline the premises in the manner in which you wish to purchase, either don't buy or get the vendor to change.

Of course, the vendor has the option of refusing to amend the lease before sale and you may lose the purchase as a result, you have to consider your position here as this is down to negotiation.