Exclusive access to garden of ground floor flat

Rosietom2

I am in the process of a buying a ground floor flat, in a semi detached house that has been converted into two flats. The ground hold flat owns the freehold for the whole building, the upper flat has a lease. There is a driveway and lovely rear garden with this flat, and the vendor told us when we viewed the flat that the ground floor flat had exclusive use of the drive and garden. They let the lady in the flat upstairs hang her washing out etc, but otherwise it was exclusively ours. We have a disabled child and also dogs, so the security of being able to park next to our door and obviously a lovely private garden for the dogs sold the flat to us. However, we have received a copy of the lease for the upper flat and plan, and the driveway and grounds are clearly stated in the lease as being for the shared enjoyment of both flats. I am really upset about this. The flat is being sold with a limited title, as it is being sold by the children of a lady that died. They categorically told us on both viewings that the grounds belonged exclusively to the ground floor flat. The estate agents details simply said the flat was being sold with the benefit of a large privte garden. Our solicitor has asked the vendors solicitor to make a deed of amendment to the lease if indeed it is the case that the ground floor flat has exclusive access to the grounds.

I am sorry this is lengthy. Any advice you can give me about this situation would be much appreciated.

DVardysShadow

If what you are buying is not what you thought you were buying and it is important to you, then your only course of action is to walk away. When you do walk away, tell the agent why and what needs to be done. This may result in a solution or it may not. But don't forget that even if you had exclusive use on the basis of the lease, if you stopped the lady upstairs hanging her washing out, she will not be happy.

societys_child

The vendor says - exclusive use . .
The upstairs lease says - shared use . .

I would think the written word (of the lease) has more legal standing than the word of the vendor who appears to be telling you, literally, that everything in the garden is lovely .

However the leaseholder may have not wanted access (except for the washing) and this situation may have existed for some time without any problems . . but, it would appear whoever lives upstairs have a right of access.

Is there nothing about it in the freehold?

Mr_Thrifty

Don't be a moron (no offence intended). This is really quite a simple situation.

The vendor is obviously trying to make out that their flat comes with an exclusive garden. They think that, because they're on the ground floor and are closer to the garden than the upstairs flat, the garden is "theirs". They think they have some sort of special entitlement to it. They don't read leases but instead just make assumptions based on their own opinion of what they think is "fair" (which usually isn't fair at all). They probably have a superiority complex and are the sort to tell fibs and exaggerate generally in life. Let me guess - young couple, late 20s or early 30s? The sort to have BBQs and who place a lot of value on what other people think of them?

The lease however tells a different story. It says it is a shared garden. It is written in black and white. Couldn't be clearer - if people could just be bothered to read it.

What more do you need to know? It's pretty obvious that the vendors are either liars or deluded, and that the garden is a shared one. Don't be a sucker.

Rosietom2

Thank you. We are buying the flat as. Holiday home, and I would gladly let the lady use the garden when we were not there, and to continue using it when we were there for washing etc. My main concern really is our dogs, and I am sure many people would object to our dogs playing in the garden etc.

I think we will walk away, I just feel very sad about this as we were so excited. I have never bought a flat before, know little about leases etc. Would it theoretically be possible to pay the lady upstairs to essentially surrender her right to access the garden and use the drive, and to amend the lease. I know this must sound awful, and as I already said I would gladly let the lady continue to do what she already does in the garden.

Mr_Thrifty

You're already starting to fall into the trap that the current vendors have fallen into.

"I would gladly let the lady use the garden when we were not there, and to continue using it when we were there for washing etc."

I'm sure the lady upstairs would not take too well to this comment. You would "let" her use the garden? As if she needs permission from the owners of the downstairs flat? She has a RIGHT to use the garden. A legal entitlement if you will. This is where the current owners went wrong. They see the garden as "theirs" and theirs only, when it is not. They don't understand that they do not have exclusive use of it.

"Would it theoretically be possible to pay the lady upstairs to essentially surrender her right to access the garden and use the drive, and to amend the lease."

In theory, yes. But why would she do that? It would massively de-value her own property.

"I know this must sound awful, and as I already said I would gladly let the lady continue to do what she already does in the garden."

In which case, why would you want the lease amended? You seem to be contradicting yourself here. This is the same problem the current vendors have. They know it's a shared garden, but don't want to admit it to themselves.

Rosietom2

Thanks mr thrifty! I think I maybe phrased my question wrong. The vendors are actually selling the flat on behalf of their deceased mother, I would guess are in their sixties and seem like down to earth people, not show offs!

They clearly didn't read the lease properly for the upper flat, or if they did they have deliberately misled me, which is very annoying as I have had survey, searches etc done now and will incur solicitors fees when we pull out. What I really want to know is if a lease can be amended so that the upper flat relinquishes their right to access, in exchange for a fee. If they don't use the grounds and don't have a car, they might be agreeable to this.

I would be suggesting to the vendor that they sorted this out obviously.

G_M

Would it theoretically be possible to pay the lady upstairs to essentially surrender her right to access the garden and use the drive, and to amend the lease.

Errrr... did you not say:

Our solicitor has asked the vendors solicitor to make a deed of amendment to the lease

?
Either she'll agree or she won't! And at what price?

societys_child

I would imagine if the leaseholder upstairs agrees (and possibly their mortgage provider?) , you could have a new lease written. might cost you more than just the legal work though. Leaseholder might want some form of compensation.

hazyjo

Am sure you have looked into this, but wanted to mention it - are dogs definitely allowed? It's rare they're allowed in a flat, although there are generally less restrictions in an old converted house. But if the lease actually states that the garden's shared, I'd be surprised if dogs were allowed.

Jx

Mr_Thrifty

It is perfectly possible to have the lease amended so that you have full and sole use of the driveway and garden. I would be very surprised if the upstairs flat would agree to this, however. What usually happens in situations like this is that downstairs offers what they consider to be a "huge" sum of money (think £1,000 or so) whereas upstairs rightly acknowledges that losing access to the garden and driveway will knock something like 25% off the value of their property. They're not just going to give up their rights to the garden and driveway for free, you know.

Basically, I don't think you'll find a price for making the amendment that you'll both be able to agree on.

Note also that, if the upstairs flat is mortgaged, then the owner will need to obtain agreement from their lender. This can be difficult.