Communal Garden Usage

Lurcheral

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 If not maybe the lease wording has been superseded by the flat owners buying the freehold?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 ?

I think you have probably hit the nail on the head there. The freehold was definitley purchased after the leases were written so initially someone probably held the overall freehold. As the freehold was bought no one changed the leases but we've been using it as a communal garden for at least 50 years and we pay for it out of the service charge. I guess the leases could have been changed but the assumption had always been that we now own the garden and can therefore use it.

bouicca21 the flats on the ground floor have the same lease also but direct access out to the garden.

Freecall

The legal situation is simple, if the lease does not grant a right then it does not exist.

Although the buyers solicitor may be being pedantic they are quite right to question this and bring it to the attention of their client(s).

Let us imagine the following is or becomes the case :

1) The leaseholder only has the right of access across the land (not any other enjoyment).
2) The other party to the lease (the freehold company) wants to use the land for something - let it out as a car park maybe?
3) As long as they allow free access for the leaseholder then all obligations will be satisfied.

Ah, but the leaseholder is also a member of the freehold company I hear you say. Well that gets the leaseholder a vote but unless the freehold company's AoA have been drawn up with a decision making framework which allows for this or there is a shareholders' agreement in place, it will be extremely unlikely that the leaseholder has a veto.

It will probably never happen but solicitors are there to consider not only the likely but also the possible.

moneyistooshorttomention

Very true - I would be scared as potential buyer that all I had in writing was "right of access" precisely unless there was something there saying that even one person could exercise a veto if need be (eg if all the others ganged-up and decided to sell the garden).

I would want to know that, even if I was completely outvoted, that I could prevent that sale and keep the "use of communal garden" I had bought in the first place.

Lurcheral

Thanks for your further thoughts on this. I do understand what you're both saying although it seems that the opinions in general are quite split on this, rather like the situation I've found myself in. Both parties have a different interpretation. I didn't understand this sentence though: 3) As long as they allow free access for the leaseholder then all obligations will be satisfied.

I'm a bit confused now but it is something that needs to be looked into and thats something that needs to be done by the whole group in time. I have no doubt that if we needed to put this clause in everyone would be happy to do it, as they already think that this is the status quo. However it would take some time to get everyone together, investigate further and make a decision. This is not something that could be done during the conveyancing as we're at the end of it now.
I think providing a letter to say that this is in effect how it works and that we'll look into it should be enough but as it's not then they'll just have to walk away.

Lurcheral

Presumably nothing is guaranteed anyway. Had the lease up till now said that usage was allowed, if in say 10 years time a completely different set of residents live here and therefore different directors/cofreeholders decide that actually they don't want the garden anymore they can change the lease and sell it anyway? So if leases can be changed there's no guarantee it will stay a certain way in perpetuity regardless.

moneyistooshorttomention

Lurcheral wrote: »

Presumably nothing is guaranteed anyway. Had the lease up till now said that usage was allowed, if in say 10 years time a completely different set of residents live here and therefore different directors/cofreeholders decide that actually they don't want the garden anymore they can change the lease and sell it anyway? So if leases can be changed there's no guarantee it will stay a certain way in perpetuity regardless.

Bringing us neatly back round to - you'd have to ensure that any vote on this would be totally unanimous - so that no-one got outvoted that intended to keep it as a garden.

Lurcheral

moneyistooshorttomention wrote: »

Bringing us neatly back round to - you'd have to ensure that any vote on this would be totally unanimous - so that no-one got outvoted that intended to keep it as a garden.

Haha, yes point taken. It should probably all be looked at but in terms of the conveyancing if the lease had said usage then the solicitor wouldn't have brougth it up despite it not being in perpetuity so really it's a bit of a moot point and actually they're in the same situation whether it is mentioned or not as they now have a letter giving them written permission which could also be revoked at a later date.

It's strange that the flats here have changed hands many times over the years since the freehold was acquired in the 1950's and it's only my sale now where these points have been raised. I guess the other solicitors either didn't see any issue or weren't paying proper attention.

Riggyman

Ignore anything money says, she is a mentalist.

moneyistooshorttomention

wikipedia definition of mentalist = highly developed mental or intuitive abilities

Yeh I'd take that:rotfl::rotfl:

Someone who makes negative personal comments about another person on the other hand - hmmmm......

deFoix

Freecall wrote: »

The legal situation is simple, if the lease does not grant a right then it does not exist.

Although the buyers solicitor may be being pedantic they are quite right to question this and bring it to the attention of their client(s).

Let us imagine the following is or becomes the case :

1) The leaseholder only has the right of access across the land (not any other enjoyment).
2) The other party to the lease (the freehold company) wants to use the land for something - let it out as a car park maybe?
3) As long as they allow free access for the leaseholder then all obligations will be satisfied.

Ah, but the leaseholder is also a member of the freehold company I hear you say. Well that gets the leaseholder a vote but unless the freehold company's AoA have been drawn up with a decision making framework which allows for this or there is a shareholders' agreement in place, it will be extremely unlikely that the leaseholder has a veto.

It will probably never happen but solicitors are there to consider not only the likely but also the possible.

Hmm, very very unlikely I think. Check the AoA of course but it's most freehold companies setup for residents management are not allowed to make a profit SO why would they tear up the garden to install xyz. There is risk in every property purchase; I think in this case the buyer is being a bit silly given the share of freehold situation.