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Thomas
Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7591
Experience:  UK solicitor holding an England and Wales practising Certificate.
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Hi, I bought my ground floor flat with soul use of my garden.

Customer Question

Hi, I bought my ground floor flat with soul use of my garden. My flat is within a 4 floor Victorian house with 3 flats above me and I have a very long lease. The person who owns the lease on the flat above me says she needs to build a fire stairs leading into my garden. I told her she cannot because I bought the flat with soul use of the garden which is stated in the deeds and my plan. There is a fire door at the back of her flat already and she mentioned that the last tenants ripped it out. She told me the Freeholder told her when she bought the flat that she must build a fire escape. I had another look at my deeds and there is no mention of stairs leading into my garden We have access to the side of the house so I said why can't she build it there and she replied because it will be too expensive. Where do I stand as I want my privacy and not to have the threat of her tenants using my garden through her fire escape when I'm not there. There is nothing in my deeds at all to say the other leaseholders as the right to use my garden. Many thanks.
Submitted: 3 years ago.
Category: Property Law
Expert:  Thomas replied 3 years ago.

Hi

 

Who is named as freeholder? Is it a management company?

 

Why can the fire door not be reinstated without the stairs?

 

Kind regards

 

Tom

Customer: replied 3 years ago.
Hi Tom,
There is amanagendbt company looking after the property on behalf of the Freehoder. I have'nt heard from the Freeholder about this, just the Leaseholder.

I don't know why she cannot reinstate the door without stairs. Is that allowed?

Many thanks
Expert:  Thomas replied 3 years ago.
Okay.

Do you simply have a right to use the garden, or is the garden actually included as part of your lease (ie. included within the land registry leasehold title for your flat)?

Tom
Customer: replied 3 years ago.
It is included. I have the lease for 997 years.
Expert:  Thomas replied 3 years ago.

Hi

Thank you for your question and patience, I’m Tom and I’ll try to help you.

If the garden is actually included in your land registry title the you hold the absolute legal leasehold title to the land and it’s not simply a right which your lease benefits from, it is actually your land.

If neither your lease or the other leases grant the freeholder or other leaseholders rights over the garden in respect of a fire escape then you are in a pretty strong position.

In order to put a fire escape in which presumably would need part located on your land and, further, then use it, there would have to be a legal right (ie. easement) to do so included in the other leases or in your leases. If there is no such right then they cannot obtain this right expressly without a deed of variation varying your lease and for this they would need your agreement since you would be required to execute the Deed of Variation.

So, if you are not willing to do this then the situation will stay as it is now.

The only other way in which they might claim an easement would be by prescription, which is acquisition of the right by long use. However, in order to do this they would need to have exercised the right for over 20 years, which presumably they have not done since the fire escape is not actually built.

On this basis you would be able to resist any attempts to build the fire escape. If you find they are obstinate about this then you should refer to the freeholder indicating that this would be a breach of the other leaseholders lease and that you would look to them to enforce the breach as well as doing so yourself.



My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.


Kind regards,


Tom
Customer: replied 3 years ago.

Hi Tom,


 


Thank you for this. On the land registry it does indicate my boundries in a diagram showing the garden and flat are both on my lease. I don't think I own the land just the lease does that affect what you have written above. No one has the right to go into my garden. There was a set of stairs leading from the fire door from the above flat into my garden years ago that was removed without the freeholder's consent which I found out after I bought the flat. I double checked my lease and registry and there is no mention of the stairs, not even in the diagram. When the lady in the above flat was buying the flat, she told me the Freeholder said that if she is buying the flat then she must replace or build the fire escape. As there is no mention of this in my lease or land registry then she has no access no? Couldn't she build the fire escape on the side like most houses do?


Many thanks


 

Expert:  Thomas replied 3 years ago.
Hi,

I was paraphrasing. If it's included in your leasehold title then you "own" the leasehold interest in the garden in the same way that you own the interest in your flat. It doesn't affect what I have already said.

If there was a previous fire door/stairs then this would have to have been authorised and stated in your lease, otherwise the position is as above. No right in the lease, no right to erect the fire escape.

It may be that the person who owned your flat simply did not dispute, but that does not prevent you from resisting it.

I have a meeting now for about 45 mins, if you require further clarification then I will get back to you then.

Please do remember to rate my answer once you are finished.

Kind regards,


Tom
Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7591
Experience: UK solicitor holding an England and Wales practising Certificate.
Thomas and other Property Law Specialists are ready to help you
Customer: replied 3 years ago.

Thank you very much Tom. You have been most helpful.

Expert:  Thomas replied 3 years ago.
You're welcome.

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