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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10398
Experience:  I have been practising for 30 years.
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My wife and I were leaseholders of a flat with a parking

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My wife and I were leaseholders of a flat with a parking space as part of a redeveloped block in Highbury, north London. We bought the leasehold in November 1989 and rented the flat until we sold it in June 1998. We had previously lived in another flat at the same development. The new leaseholder did not want the car parking space (he had no car) and we planned to separate it from the flat’s title with the intention of either using it ourselves (on visits) or selling it. In the event, administrative misunderstandings between our solicitors and Land Registry resulted in the car parking space remaining with the flat, without us realising it. This came to light in 2000/01 and our solicitor was re-instructed to have the Land Registry entry changed. This was completed in September 2001 by Land Registry who checked beforehand with the leaseholder for any objections; he had none. Land Registry apologised for their original error in not completing the request to separate the titles as requested. The car parking space was sold separately in August 2002 to a third party not resident at the flats.
I have now been contacted by the Residents’ Management Company who allege that the decision to split the title was in contravention of the lease for the flat, which we signed when we bought it, and the management company should not have been left in a position where the demise of the flat and the car parking space had been impermissibly separated into two parts. I do not have a copy of the lease in question : see notes below.
My queries are :
1. Assuming there was a contravention of the lease, what options are open to the management company to try and rectify this ?
2. Given that there is almost no original paperwork remaining, the original buyer in 1998 of the flat has moved, the current status of the car parking space is unknown and the solicitor that acted for us ceased business many years ago, would any claim made by the management company on us still be valid at least 15 years after the last event ?
1. The only original paperwork provided to us by the management company by way of back-up are copies of correspondence between the Land Registry office and our then solicitors between April 2001 and September 2001, trying to rectify the oversight by Land Registry when the space and the flat were supposed to have been separated.
2. As mentioned above, our solicitor and his practice ceased business many years ago. However, the management company has located one of the other partners in the same practice, who now works for another group of solicitors. To my knowledge, he was not involved in any of these legal matters.
3. We do not have any papers that relate to these matters. They were kept for many years but destroyed in 2011 before we downsized and moved to smaller sheltered accommodation because of my wife’s serious illness. She is now in a nursing home permanently, suffering from Parkinson’s dementia and so has no memory left.
4. My memory is not good at 81 years old, but in any case we would have left the legal side of the transactions to our solicitor. Clearly neither our solicitor nor the solicitors acting for the buyers concerned raised the possibility of a lease contravention at the time.

Whether this is a contravention of the lease or not will depend on the wording of the lease and whether the title number for the parking space is the same title number as the title for the flat. As there was a problem with the Land Registry splitting the title to the lease, it appears that it was all one title.

You can get a copy of the lease from the Land Registry if you don’t have it. It usually costs £20.

That will tell you whether this is a breach of the terms of the lease or not.

The lease will usually contain a provision that you are not to part with part of the premises/property or sublet part of the premises as opposed to the whole.

You would need to look at what the property is called, premises or property and then look at the actual definition of what the property is called to see the extent of it. It may say that it’s the flat edged in red and the parking space edged in red.

If there is a covenant that you shouldn’t sell part of the property, then this is a breach. However, the breach is now 18 years old and it’s unlikely that the court going to have much sympathy with the management company if they have waited 18 years for this to come to light.

After 20 years, of continual breach, the covenant is no longer enforceable. There is case law, Hepworth v Pickles.

Under the Limitation Act the timescale for bringing a claim in negligence against the solicitors who acted on the sale and division is 6 years from the negligent act or the date of knowledge which ever is the later, subject to a long stop date of 15 years. There is an issue here over whether you are out of time to sue the solicitors in negligence and that

limitation matter would have to be decided by the court before they even looked at the negligence claim.

At the moment, the Management Company, have made a comment without suggesting how they want it remedied. Until you know what they’re actually looking for or issue proceedings against you, there is nothing you can do until you know what they actually want because clearly, merging the titles again is unlikely to be an option

Can I clarify anything else for you?

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We can still exchange emails.

Best wishes.


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Customer: replied 1 year ago.
Dear MrCustomer : Excellent and prompt help, thank you very much. I now have a much better idea of the issues involved and will await next steps. I may well ask you for more advice, depending on how the management company reacts.Thanks again, sincerely ***** *****
Customer: replied 1 year ago.
MrCustomer: having considered your most useful reply, I do have a couple of follow-up questions. I do not understand why you say that there is an issue over whether we are out of time to sue the solicitors in negligence ? If the breach happened 18 years ago, this is outside of the 'long stop date' of 15 years, that you mention; so I am not sure why there would be doubt about this. A further complication is that the solicitors concerned went out of business in 2007, so presumably I could not sue anyway, and so it would not go to court for a decision ? Thanks for any further comments on this. Sincerely, ***** ***** 21/8/16.

The fact that the solicitors went out of business is immaterial because they would have had indemnity insurance at the time of the negligent act and the Solicitors Regulation Authority or the Law Society will know which insurance company that was.

Under the Limitation Act there is a statutory time limit of 6 years from when the negligence occurs.

The discussion for the court here would be whether the negligent act was 1998 or2001. If the latter, you may just be in time for the long stop date although you may already be too late.

Customer: replied 1 year ago.
MrCustomer: thank you for your additional reply. I believe that the date for the alleged breach will be taken as 1998 because although the title was not changed to split the space from the flat until 2001(due to Land Registry misunderstanding of the instructions to do so), Land Registry clearly state in a letter to my solicitor dated May 2001 that "an application has been taken out against title NGL592990 which will have priority to any later dealings which may be lodged". This seems to me to suggest that the title change was back dated to 1998 when the original instruction was issued.So it seems likely that we will be out of date for any claim on our solicitor but still in date for any claim on us by the Management Company ! Such is life, I fear. Peter Madge

I don’t know what claim the management company can bring because although they may not like it, they haven’t actually suffered any loss. The sinister acting for the buyer of the flat and the buyer of the garage have potentially been negligent in this because the deeds are quite specific in what they say. However they are out of time also.

It would be possible for the management company to have the transfer to the buyer set asidebut for practical purposes, the court would be depriving someone (parking space owner) through no fault of their own and either the flat owner would gain a parking space at no cost and hence would be unjustly enriched and the court wouldn’t make them pay for it.

I just can’t see that court action by the management company could produce any kind of satisfactory result

Customer: replied 1 year ago.
MrCustomer: many thanks for your help. If there are further developments I will contact you again with a new enquiry. Sincerely, ***** ***** 22/8/16.

I look forward to that. Best wishes.