Who owns the garden in this complex scenario?

sand_hun

Right, thanks. Some really useful replies here. I have since contacted the previous owner of the upper flat and she was kind enough to send me the following response: 

"I have looked through all my papers and I can see that the copy of the Land Registry sent to me on only includes first and second floor flat and stairway included in title. I can’t remember any correspondence from me disputing this, I can only think that as it was nearly 3 years after the sale I didn’t check it but assumed that it was correct.

However, all my other documents support the fact that the summer house and garden belonged to me.

My solicitors for the purchase of the upper flat were xxx. When they sent me the draft lease on 28 October 2002 I queried the that the sole use of the ground floor summer room and sole use of the garden was missing. This was subsequently corrected in the final Lease of 3 January 2003 which clearly states: 1 vii the right to use the garden edged in yellow, and 1 viii the right to use the garden room edged orange on plan 2. There are two plan 2s in the Lease.

Subsequent to this my solicitors for the sale of upper flat asked me the same question about rights to garden room and garden and I referred them to the Lease.

I also have a copy of the Fixtures and Fittings which includes ‘Trees plants and shrubs’.

And a copy of the advert placed by xxx Estate Agents for the lower flat dated 18.6.2014 which only mentions a Courtyard garden, which I take to mean the tiled yard.

I think the problem is that the Land Registry was not updated by either solicitor or myself. I hope the Lease trumps the Land Registry."

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I have also found my paperwork from the estate agent when I bought the upper flat and it confirms sole use of the enclosed rear garden and summer house. So my final questions are:

1) Does the lease trump the land registry?

2) Can I have the land registry title changed?

3) My neighbour in the lower flat said if we jointly buy the freehold it will increase the value of his flat for his upcoming sale. If I were to buy it solely on my own, does it mean his flat remains leasehold and thus won't benefit from an increase in value?

Thanks in advance to those who are able to answer any of the above.

silvercar

sand_hun said:

Right, thanks. Some really useful replies here. I have since contacted the previous owner of the upper flat and she was kind enough to send me the following response: 

"I have looked through all my papers and I can see that the copy of the Land Registry sent to me on only includes first and second floor flat and stairway included in title. I can’t remember any correspondence from me disputing this, I can only think that as it was nearly 3 years after the sale I didn’t check it but assumed that it was correct.

However, all my other documents support the fact that the summer house and garden belonged to me.

My solicitors for the purchase of the upper flat were xxx. When they sent me the draft lease on 28 October 2002 I queried the that the sole use of the ground floor summer room and sole use of the garden was missing. This was subsequently corrected in the final Lease of 3 January 2003 which clearly states: 1 vii the right to use the garden edged in yellow, and 1 viii the right to use the garden room edged orange on plan 2. There are two plan 2s in the Lease.

Subsequent to this my solicitors for the sale of upper flat asked me the same question about rights to garden room and garden and I referred them to the Lease.

I also have a copy of the Fixtures and Fittings which includes ‘Trees plants and shrubs’.

And a copy of the advert placed by xxx Estate Agents for the lower flat dated 18.6.2014 which only mentions a Courtyard garden, which I take to mean the tiled yard.

I think the problem is that the Land Registry was not updated by either solicitor or myself. I hope the Lease trumps the Land Registry."

---------

I have also found my paperwork from the estate agent when I bought the upper flat and it confirms sole use of the enclosed rear garden and summer house. So my final questions are:

1) Does the lease trump the land registry?

2) Can I have the land registry title changed?

3) My neighbour in the lower flat said if we jointly buy the freehold it will increase the value of his flat for his upcoming sale. If I were to buy it solely on my own, does it mean his flat remains leasehold and thus won't benefit from an increase in value?

Thanks in advance to those who are able to answer any of the above.

1) the lease will also be registered with LR. There is no trumping, the lease should have been correctly registered and shows the use of the garden. The garden is owned by the freeholder.
2) Yes, if all parties agree.
3) The increase in value is arguable, it may speed up finding a buyer as a share of freehold is preferable to a leaseholder. Not sure how much it would add to the value.

nicmyles

Sole use of the garden is not the same as ownership of it. The position is as posters have outlined above - ownership of the garden is not included in your lease, but you do have permission to use it. From what you've said above, both the Land Registry and the lease are correct, there doesn't appear to be any conflict between them, so it wouldn't be possible to change the Land Registry entry.

In practical terms for you day to day, going about your life and using the garden, it makes no difference that you do not "own" the garden, if the lease wording is as you say, and if there is no contradictory wording in your neighbour's lease.

The only issue for you really, I think, is if you go ahead and buy the freehold jointly with your neighbour, to ensure they understand and agree that the usage of the garden set out in the leases will not change. But honestly if they haven't mentioned it, and have shown no signs of wanting to use the garden, it may be better not to put the idea in their head.

You're more likely to have issues with a future neighbour who may take a different view about the garden they, with their share of freehold, will technically own part of, regardless of what it says in the leases, which although technically still in force, will become increasingly irrelevant in practice if you both have share of freehold, since all decisions about the property need to be made jointly between the two of you.

Your neighbour may be right that share of freehold will increase the value of his property, and yes, if you buy the freehold alone, his flat would remain leasehold and any uplift would not happen.

EDITED TO ADD - I suppose it would be possible, once you have share of freehold and if your neighbour agrees, to cancel your lease and issue yourself a new one that includes the garden (ownership, not just usage), so it would then appear in your title plan. But there would be a cost to get it done and not sure how much difference it makes practically, if I'm honest! Perhaps worth it if it gives you the certainty you're clearly looking for.

eddddy

sand_hun said:

Since our flat is bigger and we have been using the main garden/summer house, we have agreed to pay 70% of the cost.

Are you also expecting to own a 70% share of the freehold - and therefore have overall control of decision making?

If so, the 30% share held by the other leaseholder would be pretty much worthless - unless the property has some future development potential (or huge ground rents).

It would be more usual to own 50% each - so that you both get an equal say in the decision making.



More generally, from the previous owner's letter, it sounds like they didn't understand the lease either - so maybe disregard their comments.

Based on your posts, as others have explained, the situation with your lease seems to be...

• One chunk of garden is included in your lease (therefore you own that chunk and have sole use of it)
• Another chunk of garden is owned by the freeholder - but the freeholder has granted you sole use of that chunk

None of that will change as a result of the freehold being sold - whether it's sold to you, jointly to you and your neighbour, or to anyone else.

(Unless the future freeholder(s) and you jointly agree to change your lease in some way...)

Alter_ego

Edddy, It's a bit misleading to tell a leaseholder they own a chunk of garden because it's included in their lease. Or am I missing something?

princeofpounds

nicmyles said:

Sole use of the garden is not the same as ownership of it. 

This.

It's very clear in your lease OP that you have the right to use the back garden. Ownership stays with the freehold title, and was never transferred. The previous owners seems to have misunderstood that point, or at least are describing the situation loosely (despite being very helpful, I must say).

There is one important question I am not sure of the answer to. Ultimately, both you and the previous owner seem to be thinking in terms of sole use of the back garden. It is not immediately clear from the lease terms that have been (vaguely) mentioned that the use actually is *sole*. If not, the freeholder could also use the garden.

Perhaps there is a legal convention that can answer that, or the wording in the lease is more specific.

It wouldn't matter much, except that if you buy the freehold together with the neighbour then said neighbour, or their successors, may get some ideas about use of the garden by virtue of their status as co-owners of the freehold, rather than as leaseholders of their flat.

Wonder if anyone has any input into that.

nicmyles

Alter_ego said:

Edddy, It's a bit misleading to tell a leaseholder they own a chunk of garden because it's included in their lease. Or am I missing something?

If it was included in their title plan, it would not be misleading.

You have made a wider point upthread about leaseholders not owning anything, which is just semantics. I think leasehold is a terrible system, but to suggest leaseholders are not in practice property owners is not helpful.

Since this particular lease refers to sole use of a garden, I agree it is not accurate to say they own it.