My flat is land locked!

ROX1980

Evening, after a bit/a lot of help! Currently have a lease hold flat which I mortgage and own. However I have a small hallway that I only have sole use of and not communal area with an exit to the road that belongs to the management company, they own it and do not want to put it in my lease. Fast forward 5 years and I am selling the flat which has fallen through due to the hallway and apparently a grant of easement is unworkable as is a license due to the temporary nature of it, so my buyer has pulled out....Do I have a case for Solicitor negligence in the first instance for not informing me of of this error years ago....and is there any other way to gain access to the hallway legally without owning it.

Many thanks

princeofpounds

Don't panic. This can probably be sorted but it is a pain. You might have a case against your solicitor but this is not at all certain, because solicitors can't remotely see everything from the documents they get and it is your duty to mention anything odd, especially where reality and the plans don't match. So it would be situation-dependent here.

But you should go back to them, or to another solicitor, with your concerns

I would guess that it is quite likely you qualify for having established an easement (right of way basically) in one of the many ways possible... Perhaps through necessity or through common intention or apparent wheeldon vs burrows. Or perhaps some other way. But you need legal advice to work this out. Read the link.

http://uk.practicallaw.com/1-385-9229?service=property#a809238

G_M

You need to clarify:

ROX1980 wrote: »

...Currently have a lease hold flat which I mortgage and own. However I have a small hallway that I only have sole use of
specified as sole use in your lease? Or just that no one else requires to pass through it? Is the hallay within your lease Plan?

and not communal area
You mean the hallway is not a communal area? or
you don't have access to any communal area?

with an exit to the road that belongs to the management company,
OK so your hall has a door to the road?
they own it and do not want to put it in my lease.
The road? Are you sure it's owned by a Mgmt Company? Not a freeholder?
Fast forward 5 years and I am selling the flat which has fallen through due to the hallway
Explain why.
and apparently a grant of easement is unworkable
Why needed and why unworkable?
as is a license
Why needed and why unworkable?
due to the temporary nature of it, so my buyer has pulled out....Do I have a case for Solicitor negligence in the first instance for not informing me of of this error years ago....and is there any other way to gain access to the hallway legally without owning it.

Many thanks

Yes. Amend the lease to grant a right of access via the hall (if that's the issue).

There are hundreds of thousands, if not millions, of blocks of flats all over England/Wales, containing flats that are owned under leases, which require the leaseholders to pass through parts of the building that are not owned under those lease, in order to gain access to their flats.

The fact that this hallway provides access uniquely to one flat makes no difference.

Are you doing your own conveyancing? Stop!

Are you using a (decent) conveyancing professional? Ask for advice!

ROX1980

Brilliant thank you V much for the info. The solicitor of the person who was interested in buying has advised his client not to accept a license as it covers the person i.e the buyer who will let it out, and not the potential tenants he will have, plus he is worried about the loose nature of a license and the revocability too. With regards to the easement his solicitor claims that it not a viable option for reasons I do not know but researching it states you have permission to access someones else property to get to yours.......I think he may have been ill advised myself and maybe is trying to get the hallway included on the lease which th management company wont release, as they plans with the hallway in the future to turn into a communal hallway when the develop flats that will require the use of the current hallway in which is solely for my use at the moment.

At present I have nothing legally binding to allow me legal access through the hallway which wasn't picked up by the solicitor years ago. It is all on word which is what I found out about 3 weeks ago which is not great!

ROX1980

G_M wrote: »

You need to clarify:

Yes. Amend the lease to grant a right of access via the hall (if that's the issue).

There are hundreds of thousands, if not millions, of blocks of flats all over England/Wales, containing flats that are owned under leases, which require the leaseholders to pass through parts of the building that are not owned under those lease, in order to gain access to their flats.

The fact that this hallway provides access uniquely to one flat makes no difference.

Are you doing your own conveyancing? Stop!

Are you using a (decent) conveyancing professional? Ask for advice!

Many thanks for the reply.....

So I have only ascertained in the last 3 weeks that there was no indication that I had legal right of access to the managements company hallway. However they did make it clear that I would not own it and that was annotated clearly in the deeds on the plan that did not include it in the red hatched area.

The small hall maybe 2 m x 1.8 m has a upvc door onto the main road/pavement and also a glass wooden door in the hall that leads into my property.

The management company of the building of flats approx 40ish in total (all other flats have a different communal entrance except for my flat) They are planning to build extra flat on the otherside of the hallway and ultimately open the hall into a communal one (timelines are very very vague and planning permission as yet).

For reasons that have not been explained to me I can't state why the easement won't work, but the potential buyer was advised not to settle for an easement which I can't understand from reading up on it!

I hope this clears it up a little

quotememiserable

ROX1980 wrote: »

For reasons that have not been explained to me I can't state why the easement won't work, but the potential buyer was advised not to settle for an easement which I can't understand from reading up on it!
I hope this clears it up a little

In a way it does. Central to this problem is that you don't know the reason why the flat is being rejected. Only a vague assertion that you don't understand. Either your solicitor or your buyer's need to be clear about this so that you know what problem you actually need to address....if there's anything at all. It could have been an excuse to pull out with a real reason elsewhere.

princeofpounds

Hi again Rox,


Your buyer is correct not to accept a license. That is not a solution for anyone, for the reasons they give.


As for an easement not being an option for them, there could be many reasons. Their solicitor might believe it is not legally possible. Their mortgage lender might not want to lend unless it is on paper, even if one almost certainly exists by implication. They buyer might not want the simple hassle of dealing with it all. To a certain extent you need to forget about this buyer for a while and deal with the problem you seem to have, although getting a full explanation as quotemiserable says might open up some angles to address.


You will not get the hallway included on your lease, for sure. The freeholder will want to keep that space for the expansion option you talk about. You need to concentrate on asserting (never say establishing - until your assertion fails - because that weakens your case) your easement, and if necessary translating that into writing and the lease.


Just to clarify - this hallway is the only way to access your flat? (by a door I mean, not counting breaking in via windows!).


The reason I believe it is highly likely you do have access to your flat is that a court is likely to judge that when it was sold to you, the intention must have been to give you a right to access your flat, even if that right was not marked down correctly on the paperwork.


So go back and talk to your original solicitor, co-operatively at first, and raise the issue with them. If they pull down the shutters or don't offer a strategy to help, that is when you appoint a new solicitor and consider raising a complaint (because this really may not be their fault, if they couldn't tell there would be a problem).


You might even find that they didn't consider it a problem because of a particular reason, which you don't know about currently. Keep us updated.

moneyistooshorttomention

I guess the lateral thinking take on that is to swop one of the windows to French windows (assuming the flat is ground floor) and then the flat has guaranteed entrance way on its own territory?

HouseBuyer77

That would be a structural change and require permission of the freeholder.

Still could be an option worth exploring. Perhaps fitting french doors will be cheaper/easier, sounds like your flat isn't really land locked (as in the freeholder if they attempted to block your access via the hall would ultimately find they couldn't) but fully establishing this could take some time and expense.

princeofpounds

I guess the lateral thinking take on that is to swop one of the windows to French windows

Whilst I applaud your lateral thinking, that will not work. The leaseholder of the flat will own the inside of the flat. They will not own the walls, and almost certainly not the windows. Imagine it as them owning everything up to the skim of plaster, basically.


As I said before, you need to look at asserting your easement to access your flat.

ROX1980

quotememiserable wrote: »

In a way it does. Central to this problem is that you don't know the reason why the flat is being rejected. Only a vague assertion that you don't understand. Either your solicitor or your buyer's need to be clear about this so that you know what problem you actually need to address....if there's anything at all. It could have been an excuse to pull out with a real reason elsewhere.

I am in the process with my solicitor now to get an easement with the hope that a future purchaser will see that there is a right of access understand that they don't own the hall and know they are legally protected for unaided access to the flat. I would love to know the solicitors (Person who pulled out) rationale behind why an easement is not binding in the instant with my situation???