Right of Access to formerly shared use garden

Hartlepoolmonkey

We live in a block of 2 flats and bought our flat from the housing association and were subsequently given the rear garden. The downstairs flat has a window which looks out on to our garden.


The tenant downstairs does not have right of access to our garden except for workmen to carry out repairs, install media services and to wash his window.


The tenant has openly said that he will go in to our garden every day to wash his window if he wants to and has openly said that he will sue us if he stands on a nail or is injured (despite there being nothing he can injure himself on) in any way.


My questions:


Can he go in every day to wash his window?
Given that he has openly stated that he will sue us if he were to stand on a nail or incur other injuries, can he?


We have been having a hell of a time with this tenant! I am wanting to have some ideas before my meeting with my solicitor next week.


Thanks in advance

princeofpounds

Can he go in every day to wash his window?

Well technically, yes. But if he isn't washing his windows, and just loitering or something else, then the law might treat it differently. But I suspect there are few easy remedies.

Given that he has openly stated that he will sue us if he were to stand on a nail or incur other injuries, can he?

Only if you are negligent, and leave dangerous situations in place.

You are doing the right thing seeking legal advice. You should also consider recording the condition of the garden (photos, video) to establish there are no dangerous situations.

I would also be considering CCTV to provide a record of his actions. Not sure if covert or overt would be better.

Hartlepoolmonkey

Thank you. We intend putting down decking in the future so we will make sure we put a sign up saying "mind your step".

moneyistooshorttomention

The way I read your post is that both flats previously had use of the garden, but the HA has subsequently given the garden to you.

1. Is that the case? - ie that this tenant did have same usage of the garden as your flat? In which case, the HA was rather naughty to take away part of what they are paying their rent for and I can understand why the tenant is refusing to lose what they have/had.

2. When you say the HA "gave" this garden to you - what do you mean by that? Do you mean they sold it to you and you have documentation to prove you legally own it (ie in the same way as you do for your flat)? On the other hand, did they just say to you verbally "Regard it as your garden"?

Either way....it does look, at first sight, like someone at the HA wasn't thinking ahead to the trouble this decision of theirs could cause...and it now has...

EDIT: From what I've read of the law on this, even if the tenant is trespassing (ie never having had use of the garden or part of his rent attributable to shared garden use) then he could indeed sue you if he gets injured. I seem to recall I've even read one or two instances where even a burglar could claim for injury from a householder!

I know of a situation where land-owners have had solicitors letters telling them to stop creating safety hazards for walkers using public footpaths that go across their land (though they own the land our footpaths are on).

stockton_2

If the garden was "shared use" then presumably the down stairs tenant was able to formerly use the garden. It is perhaps understandable that he is now feeling a little peeved. It is not inconceivable that his rights may have been over-ridden by the housing association. Something worth considering by your lawyers perhaps.

I was once in a similar situation. My rear window (the bed-room) faced on to a shared garden. Can you just imagine trying to lie in in the morning with the neighbours outside your bed-room window having fun.

You may feel that your rights to your garden are being usurped but believe me it will be ten times worse for the ground floor tenant.

moneyistooshorttomention

True:T

In the tenants position, I would certainly be legally investigating whether my half share of use of the joint garden could be taken off me/really HAD been taken off me by the HA.

If my findings were that the HA had actually sold (and I do mean "sold" - not given) my usage away then I would be finding out if they were legally allowed to do that.

My third step being that, if they were legally allowed to take my usage away from me, then I would be looking into what rent reduction I could expect as a result.

Hartlepoolmonkey

The current tenant moved in 6 months after we purchased the property and it is shown on our deeds that we own the garden. This is clearly defined on the deeds. The HA has since stated that any appeasements were allowed only to the then tenant at the time of purchase and that the new (and subsequent tenants) tenant does not have any rights to use our garden other than for workmen (not himself) to carry out repairs / media installation.

moneyistooshorttomention

1. What does "appeasements" mean?

2. What was the case for the previous tenant? - ie did previous tenants have use of the garden?

3. If previous tenants had usage of the garden, then was the rent reduced to this tenant to allow for them not having as much "property" as previous tenants? I am wondering if this tenant has found that he is paying similar rent level to HA tenants that have some garden usage and therefore thinking "Same rent level = same "property" level"?

AdrianC

I fail to see what previous tenants paid or had access to has any relevance to this new tenant. His tenancy clearly excludes the garden, and has always done so since he moved in, right?
He has one exception to that - for a specific purpose. Yes, he can access the garden as often or as rarely as he wants, for that purpose, but not for any other.

I'd suggest you cheerfully and willingly allow him to use the garden for that purpose. Encourage him to do so. If you see him in there, give him a cheery "Oh, hi, Mr X - that window of yours gets grubby so quickly, doesn't it...?" and get on with whatever you were doing.

He'll quickly get bored of it, and realise that he's wasting his time and blood pressure...

Gordon_Hose

He won't be out cleaning his windows every day in winter, that's for sure.

He's just being a massive end of a bell.

lincroft1710

moneyistooshorttomention wrote: »

3. I am wondering if this tenant has found that he is paying similar rent level to HA tenants that have some garden usage and therefore thinking "Same rent level = same "property" level"?

Housing Association may have increased the rent for new tenants of flats without gardens to the level of rents paid by existing tenants of flats with gardens.