Fellow-freeholder access dispute. Legal opinions anyone?

yksi

Thanks in advance if anyone has any insight here, and I understand completely that it's just opinions and not legal advice if you manage to help me with any ideas. My issue isn't a common one and I haven't been able to find one online to give me some idea. Some details changed to protect privacy but nothing that should affect the legal situ. It's very long but I want to make sure it's clear.

tl:dr; one freeholder in a block of flats is denying the other 6 freeholders access to the shared back garden.

I bought both a freehold share and a leasehold in northern England in a converted block of flats, in 2020. 7 flats altogether, each owned by a single head leaseholder, all have equal shares in the freehold. Six flats are in one building with a front door on the street, one is an annex at the rear and accessed from outside. We've been missing the fence on the left for about twenty years, and at some point the loooong term tenant in the annex took on maintenance of our shared, collectively-owned, rear garden (probably at the same time). All head leases explicitly state the right to use the garden and it is on the land registry as part of our freehold title.

At some point SINCE the fence has been gone, this rear tenant padlocked the only gate into our garden, put a name plaque on it for himself. There's a small hedged area immediately inside that gate which has his front door, but also a further pathway into our garden. He began trying to say it's his private access and his private hedged courtyard (it is not - everything outside of the buildings themselves is communal area and is shown as such on all head leases). Having spoken to tenants and other owners myself, I am told that everyone has ignored his behaviour and continued to use the garden and occasionally the hedged area over the years, accessing them from next door, where there was no fence.  A few times, the gate has been left un-padlocked and many of the residents have gone through, even if he was quite rude each time he saw it. The important part is that many tenants kept our garden in constant use the entire time and it was never fenced off on the other side preventing access.

At the time I bought, all owners were in email conversation about needing to rectify the blocked access through that gate since it is the "official" access to the garden. The owner of the annex would read and reply to long email threads but never comment on the gate. The issue would eventually get dropped because in practice nobody was really inconvenienced.

This has come to a head as a developer has now started work on a new house next door and fenced the entire site, which is of course appropriate for a dangerous building site, he can't allow access. This means we have no legal access to our own garden since we can't get into his. Three weeks ago I emailed to all freeholders including the rear annex owner explaining that we would need to arrange access through that gate and could she please contact her tenant to get it unlocked. Silence. She then phoned another owner stating that she won't, and we can all just go around the left hand side - as in, walk through a building site to get to our garden, without permission, and that since we have been doing so for years it is fine. She also indicated that she felt she had gained possession of the gate and hedged area as hers, as the gate has been there 15 years, even though she didn't even own the leasehold until 2019. So she said she was entitled to deny us access, and that she might get legal advice.

Based on our un-legal reading, it seems she thinks there's Adverse Possession in play. Our understanding is no, chiefly for these two reasons: the garden and hedged areas themselves haven't been denied access as many people continued to use them, and they weren't fenced/excluding others from getting in, and you can't claim Adverse Possession when you have permission to use a property, as in, the tenant and also leaseholder's leases both have explicit permission for the use of the shared garden.

Legally should be cut and dried right? So there still seems to be nothing we can do about the access actually being blocked. One of the other owners cut the latch thing and removed the padlock. The tenant called the police for criminal damage. The landlord then insisted she had the right to the lock being there because it was her gate and padlock, and the owner was told by police to hand the padlock back - it was back in place in less than a day, this time secured by a heavy chain instead, and the landlord and tenant both refuse to give anyone a key. The police then said it's a civil matter and closed the case. But now we are stuck, as we have tenants and leaseholders/freeholders prevented from accessing their own garden and we don't know legally what we can do about it.

How does 6/7ths of a freehold take action against 1/7th of a freehold? That leaseholder would be both the accuser and the defender of any legal action. So a conflict of interest that I can't get my head around. (Assuming she finds any idiot solicitor to touch this, that is.) My gut feeling is she will take zero action and just sit there with the gate chained closed so the onus is on the rest of us to take some kind of action. We don't know what to do.

Does anyone have any insight into what would be our best move? Thank you so much if you stuck with this and can offer any suggestions.

RHemmings

This is a complicated situation, and you need legal advice from an experienced and knowledgeable lawyer. 

People here can have legal opinions, but you need someone who truly knows what they are doing. 

Perhaps you could try lawyers such as these: https://www.bishopslaw.co.uk/shared-freehold-disputes/  They say that they have a free initial conversation. 

They have few TrustPilot reviews: https://uk.trustpilot.com/review/www.bishopslaw.com  Google reviews are more numerous and mostly positive. 

sevenhills

yksi said:

Legally should be cut and dried right? So there still seems to be nothing we can do about the access actually being blocked. One of the other owners cut the latch thing and removed the padlock. The tenant called the police for criminal damage. The landlord then insisted she had the right to the lock being there because it was her gate and padlock, and the owner was told by police to hand the padlock back - it was back in place in less than a day, this time secured by a heavy chain instead, and the landlord and tenant both refuse to give anyone a key. The police then said it's a civil matter and closed the case. But now we are stuck, as we have tenants and leaseholders/freeholders prevented from accessing their own garden and we don't know legally what we can do about it.

So the police are not interested if you force entry into the garden and remove the padlocks. Is the tenant locking the garden likely to take it through the courts, better that way the you doing it? The tenant locking the gate is just bluffing and looking like he/she is winning, until you take action.

eddddy

It might cost hundreds or thousands of pounds to get legal advice to get clarification on the lease, and then get a court order for the removal of the lock and chain.

Assuming what you say is accurate, in your position, I might take action which I believe is 'probably' correct according to the lease.

If the leaseholder / tenant believes the actions breach their rights under the lease - it will then be them who have to pay hundreds or thousands of pounds to get legal advice to get clarification on the lease, and a court order.

So I might send a letter to the leaseholder (maybe copied to the tenant) saying something like:

To: [Leaseholder of relevant flat]
From: [Freeholders of the building - maybe at least a 4 out of 7 majority]


We believe that a tenant at your property has attached a chain and padlock to the garden gate. The garden gate is the property of the freeholders, and we have not given consent for a chain and padlock to be attached to it.

Therefore you must remove the lock and chain within 7 days. [*Note that you are telling the leaseholder to remove it. You have no authority to tell the tenant to remove it]

If the chain and padlock is not removed within 7 days, the freeholders will instruct a contractor to remove it. You will then be required to pay the contractors fee (plus the freeholders' reasonable costs) as a Leasehold Administration Charge, as defined in the Commonhold and Leasehold Reform Act 2002.

If the chain and padlock is removed by a contractor, it will be safely stored by the freeholders for a reasonable period of time, until a convenient time for you to collect them can be mutually agreed.

Should you or your tenant attach another lock and chain (or anything else) to the gate in the future, we reserve the right to instruct a contractor to remove it without further notice, and you will be required to pay further Leasehold Administration Charges.

To be honest, the legal position is probably more complex than the note above suggests. 

But if you're pretty sure you're 'in the right', it seems like a pragmatic approach.

But if it turns out you're wrong, the freeholders would have to cover the cost of the contactors and pay compensation for the cut chain.

RHemmings

Legal advice can be expensive, but a free initial consultation is free. There have been times in the past when I've had the free consultation, not hired the lawyers for subsequent services, but the information I received during the consultation then was applied in me DIYing it. Not for a purpose resembling yours, but having the free consultation shouldn't hurt provided that you resist the hard sell at the end. 

bouicca21

Leasehold advisory service?

eddddy

bouicca21 said:

Leasehold advisory service?

They advise leasholders. 

This is a problem faced by the freeholder (which is probably a company). The LAS don't advise freeholders.



The OP Is also a leaseholder - so the OP could contact the LAS as a leaseholder about being prevented access to the communal grounds.

So the LAS would tell them to inform their freeholder, and that the freeholder should take action. But the OP is (one of) the freeholders. So they're no further forward.

yksi

sevenhills said:

yksi said:

Legally should be cut and dried right? So there still seems to be nothing we can do about the access actually being blocked. One of the other owners cut the latch thing and removed the padlock. The tenant called the police for criminal damage. The landlord then insisted she had the right to the lock being there because it was her gate and padlock, and the owner was told by police to hand the padlock back - it was back in place in less than a day, this time secured by a heavy chain instead, and the landlord and tenant both refuse to give anyone a key. The police then said it's a civil matter and closed the case. But now we are stuck, as we have tenants and leaseholders/freeholders prevented from accessing their own garden and we don't know legally what we can do about it.

So the police are not interested if you force entry into the garden and remove the padlocks. Is the tenant locking the garden likely to take it through the courts, better that way the you doing it? The tenant locking the gate is just bluffing and looking like he/she is winning, until you take action.

I am fairly sure that the tenant has been told by his landlord that the garden is now theirs. This is the attitude coming from the tenant.

yksi

eddddy said:

It might cost hundreds or thousands of pounds to get legal advice to get clarification on the lease, and then get a court order for the removal of the lock and chain.

Assuming what you say is accurate, in your position, I might take action which I believe is 'probably' correct according to the lease.

If the leaseholder / tenant believes the actions breach their rights under the lease - it will then be them who have to pay hundreds or thousands of pounds to get legal advice to get clarification on the lease, and a court order.

So I might send a letter to the leaseholder (maybe copied to the tenant) saying something like:

To: [Leaseholder of relevant flat]
From: [Freeholders of the building - maybe at least a 4 out of 7 majority]


We believe that a tenant at your property has attached a chain and padlock to the garden gate. The garden gate is the property of the freeholders, and we have not given consent for a chain and padlock to be attached to it.

Therefore you must remove the lock and chain within 7 days. [*Note that you are telling the leaseholder to remove it. You have no authority to tell the tenant to remove it]

If the chain and padlock is not removed within 7 days, the freeholders will instruct a contractor to remove it. You will then be required to pay the contractors fee (plus the freeholders' reasonable costs) as a Leasehold Administration Charge, as defined in the Commonhold and Leasehold Reform Act 2002.

If the chain and padlock is removed by a contractor, it will be safely stored by the freeholders for a reasonable period of time, until a convenient time for you to collect them can be mutually agreed.

Should you or your tenant attach another lock and chain (or anything else) to the gate in the future, we reserve the right to instruct a contractor to remove it without further notice, and you will be required to pay further Leasehold Administration Charges.

To be honest, the legal position is probably more complex than the note above suggests. 

But if you're pretty sure you're 'in the right', it seems like a pragmatic approach.

But if it turns out you're wrong, the freeholders would have to cover the cost of the contactors and pay compensation for the cut chain.

This is amazing and a very sensible approach. I'm really very grateful, thank you so much.

I have been in phone contact with three of the other owners (two definitely of the same mind as me and one which doesn't want to rock the boat) but assuming that collectively most of us will all back such a letter, this is probably how we will proceed. It doesn't seem like a big financial risk to face footing a contractor's fee between us if it doesn't work out. Much obliged!

ThisIsWeird

yksi said:

There's a small hedged area immediately inside that gate which has his front door, but also a further pathway into our garden. He began trying to say it's his private access and his private hedged courtyard (it is not - everything outside of the buildings themselves is communal area and is shown as such on all head leases). Having spoken to tenants and other owners myself, I am told that everyone has ignored his behaviour and continued to use the garden and occasionally the hedged area over the years, accessing them from next door, where there was no fence. 

1) Protect yourselves. Buy a cheap pocket video recorder - around £20 on eBay. Clip this discretely to a pocket, and set it going whenever you 'take action'.

2) Be calm and matter-of-fact in any dealings, and don't get drawn into arguments or discussions. Decide on a few 'mantras', and stick with them.

3) Print out the relevant sections from everyone's deeds, including the maps which indicate the communal areas.

4) Act in concert with your fellow victims. You can either go 'legal' - which, from what you say, should be an open and shut case (unlike the...fnurr fnurr...), but who the hell wants to go there?! Or, you can take 'direct action'.

Consider for a moment - this deluded person cannot actually do anything to you! If he curses, you have it recorded. If he threatens you or is aggressive, you call the police (have the local Bobby on speed dial, and call them there and then, in front of the guy. You will have evidence.) In any case, there will hopefully be a few of you there - they need to be similarly calm and keep things simple.

So, what sort of 'direct action'? Prove a point. With your colleagues, get a picnic together, and a small table. On a suitably sunny day, either climb the gate or cut the chain, and set up the table in the hedged courtyard he calls his own, right in front of his door. When he remonstrates, clink your glasses and raise a cheer. Big smile; "There you go - deeds and maps to show this as a communal area! Tell us that this is wrong! Can you do that? Is this wrong? Have you rewritten a legal document inside your head or what?" Non-aggressive, gently making your point, and asking him to reply.

And, "Well, what are you going to do about it?! You are interfering with our rightful access. We have EVIDENCE - there it is - of our RIGHTS. Do you have any for your claim?! Show us!"

I suspect he'll either explode, or back down. For the former, if warranted, call the police. Explain to them that you are trying to sort out what is a clear-cut case in an amiable and light-hearted manner, rather than the nastiness of going 'legal'; "There's the evidence of our rights - (show the docs) - and surely better this than the unpleasantness of legal action?" Do not allow the police to remove you - state clearly that you are fully within your rights to be there, using this communal area as it is intended. Make it clear you will make an official complaint if they suggest otherwise.

If the guy backs down, then come to an agreement. Full, unfettered access at all times - if he must lock the gate, you all should have a key - no unpleasant remarks from him in future, and - in return - you'll only use the hedged courtyard in order to access the main garden ( (a) IF you are all happy to allow this concession as a rolling arrangement (ie, could be withdrawn at any point), and (b) nothing in writing to state this). No need to write any of it down - this is just an informal agreement for the time being. "But, any attempt by you to restrict or discourage our RIGHTFUL access, then we will demonstrate to you whenever we like that you are in the wrong. Do...we...make...ourselves...clear?"

If he doesn't budge, then next step is to cut the chain...

Important - gather and collate the evidence. Statements of truth from all residents regarding their previous use of the garden and courtyard, the blocked access by this guy, and the sorts of unpleasant comments he's levelled against them. Recordings of the same if you can. Don't avoid this guy, but you behave as normal, and do everything you are entitled to do, and challenge him on any remark he makes. Calmly, factually.

Turn the tables so that the onus is on him to try and prevent you from using this space, rather than on you to have to take action in order to prove the obvious. It'll be far easier for you lot to defend a vexatious claim, than to bring an action. And it'd be hellishly difficult for him to launch an action - next to zero chance of him winning. This is something you could defend yourselves, if need be - assuming none of you has LP in your insurance?

Of course, you'd need to be 'happy' to do this. But it sounds like fun, yes? :-)

yksi

ThisIsWeird said:

yksi said:

There's a small hedged area immediately inside that gate which has his front door, but also a further pathway into our garden. He began trying to say it's his private access and his private hedged courtyard (it is not - everything outside of the buildings themselves is communal area and is shown as such on all head leases). Having spoken to tenants and other owners myself, I am told that everyone has ignored his behaviour and continued to use the garden and occasionally the hedged area over the years, accessing them from next door, where there was no fence. 

1) Protect yourselves. Buy a cheap pocket video recorder - around £20 on eBay. Clip this discretely to a pocket, and set it going whenever you 'take action'.

2) Be calm and matter-of-fact in any dealings, and don't get drawn into arguments or discussions. Decide on a few 'mantras', and stick with them.

3) Print out the relevant sections from everyone's deeds, including the maps which indicate the communal areas.

4) Act in concert with your fellow victims. You can either go 'legal' - which, from what you say, should be an open and shut case (unlike the...fnurr fnurr...), but who the hell wants to go there?! Or, you can take 'direct action'.

Consider for a moment - this deluded person cannot actually do anything to you! If he curses, you have it recorded. If he threatens you or is aggressive, you call the police (have the local Bobby on speed dial, and call them there and then, in front of the guy. You will have evidence.) In any case, there will hopefully be a few of you there - they need to be similarly calm and keep things simple.

So, what sort of 'direct action'? Prove a point. With your colleagues, get a picnic together, and a small table. On a suitably sunny day, either climb the gate or cut the chain, and set up the table in the hedged courtyard he calls his own, right in front of his door. When he remonstrates, clink your glasses and raise a cheer. Big smile; "There you go - deeds and maps to show this as a communal area! Tell us that this is wrong! Can you do that? Is this wrong? Have you rewritten a legal document inside your head or what?" Non-aggressive, gently making your point, and asking him to reply.

And, "Well, what are you going to do about it?! You are interfering with our rightful access. We have EVIDENCE - there it is - of our RIGHTS. Do you have any for your claim?! Show us!"

I suspect he'll either explode, or back down. For the former, if warranted, call the police. Explain to them that you are trying to sort out what is a clear-cut case in an amiable and light-hearted manner, rather than the nastiness of going 'legal'; "There's the evidence of our rights - (show the docs) - and surely better this than the unpleasantness of legal action?" Do not allow the police to remove you - state clearly that you are fully within your rights to be there, using this communal area as it is intended. Make it clear you will make an official complaint if they suggest otherwise.

If the guy backs down, then come to an agreement. Full, unfettered access at all times - if he must lock the gate, you all should have a key - no unpleasant remarks from him in future, and - in return - you'll only use the hedged courtyard in order to access the main garden ( (a) IF you are all happy to allow this concession as a rolling arrangement (ie, could be withdrawn at any point), and (b) nothing in writing to state this). No need to write any of it down - this is just an informal agreement for the time being. "But, any attempt by you to restrict or discourage our RIGHTFUL access, then we will demonstrate to you whenever we like that you are in the wrong. Do...we...make...ourselves...clear?"

If he doesn't budge, then next step is to cut the chain...

Important - gather and collate the evidence. Statements of truth from all residents regarding their previous use of the garden and courtyard, the blocked access by this guy, and the sorts of unpleasant comments he's levelled against them. Recordings of the same if you can. Don't avoid this guy, but you behave as normal, and do everything you are entitled to do, and challenge him on any remark he makes. Calmly, factually.

Turn the tables so that the onus is on him to try and prevent you from using this space, rather than on you to have to take action in order to prove the obvious. It'll be far easier for you lot to defend a vexatious claim, than to bring an action. And it'd be hellishly difficult for him to launch an action - next to zero chance of him winning. This is something you could defend yourselves, if need be - assuming none of you has LP in your insurance?

Of course, you'd need to be 'happy' to do this. But it sounds like fun, yes? :-)

This is beautiful. I know that at least two of the freeholders would enjoy this with me immensely. Some very practical advice there, I'm really thankful and appreciate you taking the time to paint such a satisfying picture! We might pop this into our "to do" list the moment that the Landlord woman fails to remove the chain within 7 days and we get the contractor in. You know, a celebration party of sorts!