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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11149
Experience:  30 years as a practising solicitor.
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My daughter has bought a new build and moved in 12 months

Resolved Question:

My daughter has bought a new build flat and moved in 12 months ago. When she was doing the final walk around with the girls from the sales office a week before moving in she queried the garden area which has a wall with a metal railing fence on top of it - total 6 feet 7 inches in height and was told that it's common ground and the factor would look after it. She has since discovered that it is in fact her property, and the builders have confirmed this. She has asked that they make it accessible to her but so far they aren't being helpful, saying it was on the plans - the garden was but not the fence and it said nothing about the garden being raised about 3.5 feet above patio level. Is there anything legally that she has to have full access to all of her property?

Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
-Could you explain your situation a little more?
Why does she not have access?
Why did she not know about this from her title deed and plan that her solicitor should have shown her?
What does her solicitor say about this?
Customer: replied 2 years ago.

She's in a ground floor flat that has a patio area and where the patio "meets the street" they have put a garden. That would be good except that they have made it a raised garden that is over 3 feet high, which in itself makes getting into the garden difficult and no other ground floor flat has a garden built up that high, and on top of the brick wall they have put a metal railing fence. Total height of the wall plus the fence is 6 feet 7 inches. The street is on a hill so her patio is below street level. I am trying to get in touch with my daughter to get her to email me a photo so that I can send it to you which might help to understand what they have done.

To get access to her garden she either has to somehow get over the wall and fence.

Her solicitor did everything by phone and mail and did not go over the deed or plan with her.

She's reluctant to go back to him because he was recommended by the girls who worked in the sales office for the builder and does a lot of work for them, and she isn't sure "where his loyalties lie". She also can't afford to go down the road of a huge battle.

Expert:  JGM replied 2 years ago.
A photo would be appreciated. Your daughter could also check with the planning authorities as to what is on the plan on which planning permission was granted. She should also check the building control plan. It would be unusual for a building warrant and planning permission to be granted for a property with a garden to which the owner didn't have access. She should check what is designated on each of these plans as well as asking her solicitor to see the deed plan that was attached to the title deed granted in her favour.
I suspect this may be a case where the builder has deviated from the plans.
Customer: replied 2 years ago.

Thank you very much. We'll get access to those 2 plans. We have the deed plans which do not indicate the garden being raised or having a fence in any of the gardens other than the boundary fences according to my husband who is a surveyor. In fact in the plan there is a gate in all gardens giving them access without having to walk through their flats but this has not been put in. Would the deed plan differ from the other 2 plans? If they have deviated from the plans is there anything she can do? What plans do they have to adhere to?

For some reason I can't attach a photo of the neighbour's garden or a copy of the deed plans she was given Frown

Expert:  JGM replied 2 years ago.
A deed plan would concentrate on the boundaries of the property being sold. The plans for planning permission and a building warrant would be more detailed and the building warrant plans are those that are supposed to be used in construction.
The builder is supposed to adhere to these plans else he is supposed to apply for a variation of them. None of the plans would necessarily show the garden being raised but both should show access to and egress from the property.
Your daughter should be reporting to her solicitor that she has apparently been sold a garden she 1. didn't know about and 2. she hasn't got access to. Whilst the solicitor may have been recommended by the site office he has a professional duty to her at all times. At the very least she should have been shown a plan of what she was buying.
She should also be continuing to complain to the builder in the strongest terms, on a daily basis of necessary.
It is my experience that once a builder has your money you have to shout very loudly to get something done.
Customer: replied 2 years ago.

Does he have a duty of care to her if the builder paid her legal fees as part of the deal they were doing at the time?

Expert:  JGM replied 2 years ago.
Of course he does, yes. Whoever paid the fees is irrelevant. There's a contractual solicitor client relationship between her and her solicitor.
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