Use of garden blocked after year's of using it

eshroom

I am in the process of trying to buy a ground floor flat. The back bedroom has double doors into a garden and there is fencing from where a section of this garden had been used solely by this flat.

The garden is demised to the basement flat in our leases. The owner of the basement flat owned the whole building before splitting into flats in 1993 and selling off. While making the leases, they assigned themselves sole use of the garden. They no longer own the freehold as they sold this too.

Given there is strong evidence to suggest that since 1993 they have allowed the ground floor flat use of a section of the garden, and they have admitted as much, is there any precedent for the new owner to continue use?

The ground floor flat i being sold as a repossession and they have said they will not allow new owners to use the garden, they have made an offer themselves and therefore by not allowing anyone use of the garden, even though there is a door opening into said garden, they are hoping to drive the price down and get a better deal.

Many thanks in advance for any advice.

Tixy

So the existing lease for the ground floor flat does not mention any use of the garden?

And the existing lease for the basement flat includes sole use of the garden?

But historically there was an informal agreement between those 2 leaseholders that the ground floor leaseholder could use the garden?

Is that right?

eshroom

Tixy wrote: »

So the existing lease for the ground floor flat does not mention any use of the garden?

And the existing lease for the basement flat includes sole use of the garden?

But historically there was an informal agreement between those 2 leaseholders that the ground floor leaseholder could use the garden?

Is that right?

That is correct, to the point that the basement flat allowed a fence to be erected giving the ground floor flat an area of garden which they had sole use of (and crucially privacy for the back bedroom).

G_M

Wil the ex-owners of the ground floor who have been repossessed sign any statement as to the extended uninterrupted use of the garden they have had?

Even if so, I doubt this would stand up in court. The use of the garden has been by agreement with the basement owners, who have effectively granted them a licence, and such agreement can be withdrawn at any time.

If, on the other hand, the ground floor owners had been using the garden without the basement's knowledge/agreement, they could perhaps claim adverse possesion.

That's my non-professional view, but if pursuing this further you'll need expert advice.

martinsurrey

G_M wrote: »

Wil the ex-owners of the ground floor who have been repossessed sign any statement as to the extended uninterrupted use of the garden they have had?

Even if so, I doubt this would stand up in court. The use of the garden has been by agreement with the basement owners, who have effectively granted them a licence, and such agreement can be withdrawn at any time.

If, on the other hand, the ground floor owners had been using the garden without the basement's knowledge/agreement, they could perhaps claim adverse possesion.

That's my non-professional view, but if pursuing this further you'll need expert advice.

add on to that years of time, deep pockets, and a good therapist.

Nothing sucks the joy out of life quite like boundary disputes.

I would walk on this one.

moneyistooshorttomention

eshroom wrote: »

That is correct, to the point that the basement flat allowed a fence to be erected giving the ground floor flat an area of garden which they had sole use of (and crucially privacy for the back bedroom).

DID they allow that fence or did previous ground floor flat owner just put it up and they may/may not have objected to that?

Personally, I wouldn't go on previous usage of that bit of the garden by ground floor flat.

It sounds to me as if previous ground floor flat owner started squatting on the garden and just put up the fence without permission (quite possibly had permission in the first place - but then started taking liberties). From that, basement owner hadn't realised what sort of person they had sold that flat to and now is going to take the chance to buy that flat back and ensure this cant happen to them again. It may well be that the garden owner (ie basement flat) has some sort of written proof that they gave permission for use only of that bit of garden originally - in which case they will scupper you with that in the first place if you try and take over the garden.

I would say the only way you are going to be able to stand a chance of buying that flat is if you are prepared to accept and give a cast-iron guarantee you wont even try and use their garden. Otherwise they will try every trick in the book to prevent you buying it and, if you succeeded in buying the flat (despite their opposition) then don't expect any co-operation from them regarding communal maintenance of the house. Add the fact that noise can come up into a flat from one beneath it and they might well develop a taste for heavy metal music at top volume....