Communal Garden Usage

moneyistooshorttomention

Lurcheral wrote: »

The lease mentions free passage into the garden but doesn’t state anything else so it doesn’t say you can’t use it for sitting in and as we have furniture there it clearly is to be used.

Having had the other side of a very similar equation - one cant necessarily assume that because something is happening in a garden that that means it's legally entitled to happen in a garden iyswim.

When I bought my house I was astonished to find neighbours trespassing in my garden often. I very soon checked exactly what was down in all the legal documents and I was correct that they arent entitled to and I've put a stop to it.

Point being that just because people want something/have been doing it that doesnt necessarily mean it's "legal" that they can do it iyswim.

I would estimate, from what you say, that in your case it's all perfectly above board and someone somewhere has slipped up at getting it enshrined in writing that that is how it is. Probably best to get it enshrined in writing - as anyone in the flats there could have a similar problem with selling in the future if it's not down there in "black and white".

00ec25

Lurcheral wrote: »

With regards to maintenance and taste we all equally own the share of freehold and we are resident run so we all decide at a meeting what we want to do with the garden (no external management company). If anyone has any specific requests we decide as a group what to do. Also the maintenance comes out of the service charge.
So as someone who owns the share of freehold if we all want to use the garden then we are allowed to and if one person had an issue theyd be out voted anyway..

to me that seems a perfectly workable position to be in for a leaseholder of a flat where you want to "use" the "communal" garden

I would stick to your guns and tell the buyer they are being silly. Share of freehold gives use, nature and extent of use may be subject to opinions of the management group and therefore will be "communal" and consensual.

if the buyer does not like that then they should be looking to buy a place with a private garden

of course easy for me to say as I don't need to sell, but at the end of the day your solicitor has advised you and there really isn't anything extra you should do if the buyer persists in their silliness.

BorisThomson

Imagine a post from the buyer's POV:

"I moved into a flat and the seller said it was fine to use the garden. Now I'm here people are being funny about me having my dinner out there, and checking the lease it only says I have the right to free passage. What do I do now?!"

I expect the responses would ask why they didn't read the lease properly and clarify the issue before buying.

bouicca21

No, the freeholder said it was fine to use the garden.

Lurcheral

Thanks again folks, this is v interesting reading and I can see that the answers are split on either side.

"I moved into a flat and the seller said it was fine to use the garden. Now I'm here people are being funny about me having my dinner out there, and checking the lease it only says I have the right to free passage. What do I do now?!"
Now I totally get this argument, and it makes complete sense but then I also understand Bouicca saying "No, the freeholder said it was fine to use the garden" and do remember the buyer is also the freeholder along with the other residents.

I guess I'll have to wait now to see what the outcome is but it sounds like the property will have to go back on the market. My EA will have to say that there is a communal garden which in the lease you can't use but in reality you can lol.

It's a shame and a lesson I will learn but it's my first sale and I didn't realise there was any question over using the garden as it's never come up.

bouicca21

It occurs to me that we haven't actually seen the precise wording. 'Passage' suggests the right to pass through (why would this be useful?). 'Access' could be for a variety of purposes, including recreational.

PS possibly I should point out that my block's communal garden is actually rarely used. I don't think any of the other residents would give a flying [rude word of your choice] about being prevented from using it. They rarely even use the path (which is definitely a RoW for residents) to walk down to our garages.

Lurcheral

The exact wording is:

...rights of access to and egress from the flat and to and from the shed (this is in the garden)....

It has occured to me today though that as we all jointly own a share of the freehold does that mean that we all jointly own a share of the garden? If so how can we all own the garden jointly yet none of us are allowed to use it, that seems a bit odd.

Surely if there was still an independent freeholder then yes the lease rules apply but as we now all own the freehold equally, all have the same lease and are all shareholders/directors then it's a bit odd to own a garden but not be able to use it.

bouicca21

Yes as freeholders you jointly own the garden. Irrespective of any other consideration (and that clause is a bit puzzling, unless the ground floor flats have something different) as freeholders you can give permission to anyone to use the garden. Maybe a formal minute at a freeholders' meeting would help satisfy the buyer?

franklee

Lurcheral wrote: »

The exact wording is:

...rights of access to and egress from the flat and to and from the shed (this is in the garden)....

It has occured to me today though that as we all jointly own a share of the freehold does that mean that we all jointly own a share of the garden? If so how can we all own the garden jointly yet none of us are allowed to use it, that seems a bit odd.

Surely if there was still an independent freeholder then yes the lease rules apply but as we now all own the freehold equally, all have the same lease and are all shareholders/directors then it's a bit odd to own a garden but not be able to use it.

Did the flat owners always own the freehold? If not maybe the lease wording has been superseded by the flat owners buying the freehold? I would have thought if you own something you have the right to use it unless stated otherwise but your solicitor would know if that is the case. If so then perhaps no one bothered to change the leases when the freehold was purchased ?

moneyistooshorttomention

franklee wrote: »

Did the flat owners always own the freehold? If not maybe the lease wording has been superseded by the flat owners buying the freehold? I would have thought if you own something you have the right to use it unless stated otherwise but your solicitor would know if that is the case. If so then perhaps no one bothered to change the leases when the freehold was purchased ?

:T Sounds the most likely explanation to me and was therefore a "ticking time bomb" just waiting for a new buyer and a 21st century mindset to come along to buy one/any of the flats.

People do just "let things go" as they arent any problem at the time - not realising how many will think come the 21st century...and a noticeable number of us find things needing to be resolved (whether we be the buyer or the seller).