Use of communal gardens — lack of provisions in lease

Camden Leaseholders’ Forum homepage Discussion Board Lease + Ownership Use of communal gardens — lack of provisions in lease

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  • #6238
    alexjohnbirchall
    Participant

      The issue is this: I’m selling my flat in Weedington Road, NW5 4QQ. It is currently under offer.

      The buyer’s solicitors have requested that I take out indemnity insurance due to the lease not providing for the use of the communal garden. This is the second time they have made this request. The first time I refused on the grounds that my (inexpert) reading of the lease was that it did make such provision, though maybe not explicitly.

      The lease defines the term “Common parts” as including gardens “… and any other areas inside or outside the block but within the Estate which are not intended to remain private and which are to be enjoyed or used by the Tenant and occupiers of the Premises in common with the occupiers of the other flats in the Block or on the Estate …”. In the Easement Rights and Privileges Included section, it states “Full right and liberty for the Tenant and all persons authorised by him (in common with all other persons entitled to the like right) at all times by day or by night to go pass and repass over and along the Common Parts provided nevertheless that the Tenant shall not cause or permit the obstruction of any of the Common Parts by furniture vehicles or otherwise …”.

      The second request by the buyer’s solicitor claims that the “rights in the Lease are inadequate as currently there is only a right to pass over the garden and not to use it. Moreover, not all of the garden is included within the boundaries of the freehold title. Part of the Communal Garden is registered under a different title number and part of it is unregistered. For this reason, the lack of rights policy is required…”

      I’ve refused this second request, but this time on the grounds that I’m selling the flat as is, with the lease as is. The description of the flat provided by the Estate Agents mentions only “large well maintained communal gardens”.

      I just cannot see why where my liability lies. I was not a party to the drawing up of the Lease, so why should I be liable for any omissions? And if I’m not liable, why would I need insurance cover?

      Any thoughts?

      Many thanks.

      #6239
      WestOneTango
      Participant

        I would suggest that if the buyer is that concerned they can take out an indemnity insurance themselves?

        #6240
        Destry
        Participant

          I wonder what your solicitor advises? They are the experts in this kind of thing. Sometimes, if there is a grey area, an indemnity policy can help get the sale moving. If everyone diggs their heels in, you could lose the sale and that would be expensive, I guess.

          So I would ask your solicitor to get a quote for an indemnity policy. For a one-off payment of maybe a few hundred quid it might be worth it, whatever the rights and wrongs. Remember, the beneficiary of the policy is your buyer, not you, so if there was a dispute somewhere down the line, it would be for them to make a claim. Once you have paid for the policy, that’s it, you don’t have to worry about it ever again.

          If you are not using a solicitor, I’m sure a search would come up with dozens of companies offering this kind of insurance. From what I’ve heard hardly anyone claims on them and it’s basically money for old rope.

          Hope that helps and good luck!

          #6241
          scotkaty
          Participant

            As you say, it’s the Estate Agents who mentions “large well maintained communal gardens”. are they implying that it’s part of the lease?. If you have a right to pass and repass, then you have a right to stop, and whose going to prevent that? In any case, if you or your predecessors in title have used the garden for 20 years you have a prescriptive easement; and also probably you have an implied easement. A buyers solicitor will conduct a search; It might be that your solicitors are just trying to flog you a policy for the commission.

            #6252
            alexjohnbirchall
            Participant

              Many thanks for all replies. Hopefully, it’s not going to be a deal-breaker!

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