Leasehold Shared Garden not demised

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  • 25th March 2017 at 17:54 #4243
    ahavey
    Participant

      I am selling my leasehold flat. The house has two flats, one a council flat and mine, a leasehold flat. The deeds do not show a communal garden, yet the Leaseholder Services says it is communal in a letter. My Buyer’s solicitor says the letter is not legally binding, and we need a Variation of Deed to show the Garden is legally communal. Camden Council Leaseholder is refusing to do this, saying “we do not vary deeds” and the letter is sufficient. Unfortunately, our solicitors require a deed which legally reflects the garden is shared. Is this unusual? Any advice?

      26th March 2017 at 12:48 #4245
      Peter Wright
      Participant

        My advice would be to seek the requested deed from Camden. They have a history of changing policy and withdrawing what has previously been agreed in writing outside the lease. I also suggest you check what the lease says about service charges in respect of the garded and any walls/fences around it. Are you liable for their maintenance? What is the evidence Camden ever suggested the occupier of the upper floor had any rights to use the garden, whether you or the tenant?

        I suggest you see your Ward Councillor to seek support and (if possible) raise the issue as a Member’s Enquiry which gives it some precedence.

        Peter Wright

        29th March 2017 at 22:30 #4246
        ahavey
        Participant

          Thank you Peter. My solicitor and I are both in communication with Camden. We have the deeds. There is no legal demise. The garden is described in writing as ‘communal’, but the deed does not show this. The councils’ two responses are as follows:

          “All of the Council’s leases contain the right ‘to go pass and repass over and along the common parts’ (second schedule – easements rights & privileges) and whilst we accept this is not a right to ‘use’ the garden as such, we are content there is an implied right to do so under paragraph 2(2) of schedule 6 of the Housing Act 1985 due to the fact that the original secure tenancy included a right to use communal gardens.You have requested that the lease be varied in order to clarify the garden situation but you’ll appreciate that we have a portfolio of over 10,000 leases granted in standard form and we are therefore not prepared to agree to a deed of variation. If the current leaseholder is interested in purchasing a defined area of the rear garden then they should write to my colleague. Cherelle.brown@camden.gov.uk enclosing a plan of the area concerned and details as to how it is currently used. Please be aware the ward manager may not allow this.”

          Earlier this month, the ward housing manager, wrote: “I am writing to you following your email to my colleague Cherelle Brown, and our subsequent conversation regarding the above mentioned. I can confirm that the garden of 39 Agincourt Road is a communal garden ans as such it is shared between both residents of of the property, yourself and your neighbour in 39A. This detail would have been included in the original Right to Buy documentation when the property was bought by the original tenant but as properties are sold on, the information is not always passed on by the last leaseholder although in theory, it should. Please rest assured that you and any potential leaseholder has shared access to the garden.

          The above is well and good, but the deed, which does not show a shared or communal demise is proving a major sticking point to the sale. Anyone ever have to deal with this while selling?

          Thank you.

          9th April 2017 at 23:10 #4247
          cathryn
          Participant

            I find myself in a similar situation. Because the ‘fact on the ground’ is fairly obvious – there is a fence around the garden, which is right outside the front door of the flat, and other flats are clearly using their gardens, plus the flat is quite cheap, I’ve decided to let it be. However, I can see it could be a problem in the future.

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