Leasehold property

jon1965

This is somewhat complicated. 

I live in one of several purpose built leasehold flats and have been here 20 years. The freehold is held by a management company. According to the lease the garden is communal but generally each leaseholder keeps a part of the garden to themselves. The lease also says there should be no buildings within the garden.
About 5 years ago, I gave permission for one person to put up a shed but since then three of the others have erected wooden buildings and one has partitioned 'their' part of the garden. I am thinking of selling and wonder what my best course of action is and if it is possible.

I would like the new owner to be able, if they wanted to have the garden put back to a communal one. Can this be done or do I have to have it done before I sell. If so how do I go about it. It will cause animosity amongst the other owners and I anticipate some pushback. If the freeholders can't or won't do it can I force the issue.

Thanks.

anselld

As a Leaseholder you can insist that the Freeholder enforces any breaches of the lease.  

However if permission has already been granted the horse has effectively bolted and you have no chance of any retrospective enforcement.

Why would you care anyway if you are selling.  It will be much easier to sell to someone who is happy to accept the status-quo.

eddddy

Who owns the freehold - is it jointly owned by the leaseholders, or by somebody else?

If your lease says that you have the right to use any of the communal garden and/or your lease (and others leases) forbids putting up sheds, buildings, partitions etc - then you can insist that your freeholder enforces the terms of the lease.

jon1965 said:

About 5 years ago, I gave permission for one person to put up a shed...

In what capacity did you give consent?  You can't give consent to somebody to do something, which breaches other people's leases.

If a freeholder (or you) gives consent to a leaseholder to do something that breaches other people's leases - they're in a mega mess.

If they withdraw consent, they face legal action from one leaseholder, if they don't withdraw consent they face legal action from all the other leaseholders.

cattie

As asked previously, what authority did you have to give permission for a shed? Even if you're the sole freeholder of the land, common sense should have warned you that permitting one leaseholder to put up a shed would be asking for other leaseholders to also want to have a shed.

If you are not a freeholder, then you can't force anything as you have absolutely no authority over any of the other leaseholders.

Just sell the flat as it is, many leases have clauses that date from many decades ago that leaseholders now ignore with no consequenses, such as carpets to be fitted in all rooms, or permission to be granted from freeholder prior to redecoration.

Personally, I'd prefer to have a section of garden to myself rather than have to share it with others.

jon1965

Thanks for all the advice. 
To answer the questions
The Freeholders are the same company who bought and developed the land back in the 1980's.
One of the leaseholders asked everyone if they minded if a shed was built and as far as I am aware no one objected. The freeholders were somewhat cagey and did not formally acknowledge the existence of the shed.
Since then two more shed and a summerhouse have been erected. 
A few years ago, one of the leaseholders screamed at me like a banshee (and complained to the freeholder) because I dare to walk across 'their lawn'. A director of the freeholder company then confirmed in writing it was communal.
I see your point about having your own bit of private garden and yes, if I cut back the bushes and plants it is quite a nice lawned area to sit (or dry washing) but you know how it is 'everyone's an expert and one friend in particular has placed those seeds of doubt in my mind. 

This is, I suppose, less about what I will do but more about what could be done if a potential purchaser complained about the garden layout.

eddddy

jon1965 said:

This is, I suppose, less about what I will do but more about what could be done if a potential purchaser complained about the garden layout.

If a potential purchaser reads the lease and realises that there is a 'problem', possible options include...

1. Telling you (the seller) that you need to complain to the freeholder and get the covenants enforced before the purchase can proceed, otherwise they'll walk away.
2. Buying the property anyway, and then telling the freeholder to enforce the covenant
3. Buying the property anyway, and not caring what happens about the communal garden
4. Just walking away

But a lot of prospective buyers would avoid options 1 and 2, because their new neighbours would probably hate them from day 1.

And option 3 is a bit worrying as well. The prospective buyer would be buying themselves into a situation where everyone is breaking the rules, and so there's potential for arguments and bad feeling to develop in the future. I'd probably think twice about buying myself into a situation like that.

(On a more practical level, what will you say when the EA writing the property details asks about the garden arrangements?  Or when somebody viewing the flat asks you?)

greatcrested

Well your 'permission' for the initial shed was legally meaningless. It was simply you saying "I don't personally object and will not complain to the freeholder."

The current arrangements regarding the sheds, and sub-division of the garden, are all informal. It has no legal standing, and any one of the leaseholders could complain tothe freeholder and insist they enforce the terms of the leases ie 'communal garden'.

Do the leases say anything about maintenance?

Some buyers may be happy to proceed based on the current set-up, assuming/hoping it will continue.

Other buyers may be concerned that the leases are not currently being complied with, and this could lead to disputes, unfriendly neighbours, and/or legal action

jon1965

eddddy said:

(On a more practical level, what will you say when the EA writing the property details asks about the garden arrangements?  Or when somebody viewing the flat asks you?)

On the practical note if someone asked the answer would be an honest one- this is what the lease says but this is what has been happening 

jon1965

greatcrested said:

Well your 'permission' for the initial shed was legally meaningless. It was simply you saying "I don't personally object and will not complain to the freeholder."

The current arrangements regarding the sheds, and sub-division of the garden, are all informal. It has no legal standing, and any one of the leaseholders could complain to the freeholder and insist they enforce the terms of the leases ie 'communal garden'.

Do the leases say anything about maintenance?

Some buyers may be happy to proceed based on the current set-up, assuming/hoping it will continue.

Other buyers may be concerned that the leases are not currently being complied with, and this could lead to disputes, unfriendly neighbours, and/or legal action

The lease talks about the lessor charging the lessees for garden and fence maintenance, however, under an informal agreement the lessees manage the maintenance; this includes fencing etc. 

Katiejane13uk

jon1965 said:

This is somewhat complicated. 

I live in one of several purpose built leasehold flats and have been here 20 years. The freehold is held by a management company. According to the lease the garden is communal but generally each leaseholder keeps a part of the garden to themselves. The lease also says there should be no buildings within the garden.
About 5 years ago, I gave permission for one person to put up a shed but since then three of the others have erected wooden buildings and one has partitioned 'their' part of the garden. I am thinking of selling and wonder what my best course of action is and if it is possible.

I would like the new owner to be able, if they wanted to have the garden put back to a communal one. Can this be done or do I have to have it done before I sell. If so how do I go about it. It will cause animosity amongst the other owners and I anticipate some pushback. If the freeholders can't or won't do it can I force the issue.

Thanks.

jon1965 said:

This is somewhat complicated. 

I live in one of several purpose built leasehold flats and have been here 20 years. The freehold is held by a management company. According to the lease the garden is communal but generally each leaseholder keeps a part of the garden to themselves. The lease also says there should be no buildings within the garden.
About 5 years ago, I gave permission for one person to put up a shed but since then three of the others have erected wooden buildings and one has partitioned 'their' part of the garden. I am thinking of selling and wonder what my best course of action is and if it is possible.

I would like the new owner to be able, if they wanted to have the garden put back to a communal one. Can this be done or do I have to have it done before I sell. If so how do I go about it. It will cause animosity amongst the other owners and I anticipate some pushback. If the freeholders can't or won't do it can I force the issue.

Thanks.

Please join the national Leasehold Campaign ( NLC) on Facebook. We have over 17k members. Plenty of advice on there. Leasehold is immensely one sided in favor of the freeholder.

hazyjo

Katie, please stop spamming the boards and dragging up threads or you'll be removed. Thanks!