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Aston Lawyer
Aston Lawyer, Solicitor
Category: Property Law
Satisfied Customers: 10780
Experience:  LLB(HONS) 23 years of experience in dealing with Conveyancing and Property Law
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I have a share of freehold flat that is about to go under offer

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I have a share of freehold flat that is about to go under offer but the other flat/leaseholder has just announced they want to contest the generally agreed shared garden arrangement. At present all the land is demised to our flat but we bought the property on the basis of some shared and some private areas. there is no other paper mention of the gardens in the leases or deeds of variation. Even though we became aware after purchase that all the land was demised to our flat, we were still happy to share with our neighbour and their flat has been in their family for decades so they seem to now be saying that all the land is theres. The other party has decided to disrupt the sales process by telling the estate agent that we have no right to put private and shared in the property descriptions. I am about to get an offer, what rights do we have and how much trouble can they cause. I was happy a while ago to offer the change the title deed to share some of the garden but my mortgage lender was not happy to do this. Can we just sell and transfer the problem to the new owner? thanks
Hello and thanks for using Just Answer.

I am Al and am happy to assist you with your enquiry.

The best result would be for you to sell, and let the Buyer resolve the issue. However, the Buyers Solicitor will ask that the issue be resolved before his client purchases your property.
Likewise, if the Buyer is having a Mortgage, his Solicitor will be under a duty to disclose any issues surrounding the property and if this issue is unresolved, it is likely that that the Mortgage Lender will refuse to grant a Mortgage.

From a legal point of view, your neighbour is likely to have acquired rights over the land in question if it has been used by their Property for 10 years or more.
From a practical point of view, the best way forward (on the basis that your Buyer will want matters resolved before they complete) is therefore to agree with your neighbour to transfer the land to them, such transfer to be completed on the same day as you sell. This way, your Mortgage Lender will not need to consent and your Buyer will be happy as he will be taking the property free of any dispute.

You are best to try and speak to your neighbour asap and they will need to instruct their own Solicitor who can liaise with your Solicitor concerning the Transfer.

I hope this answers your question and sets out the legal position to you.

Kind Regards
Aston Lawyer and other Property Law Specialists are ready to help you

Hi Hugh,

Can I assist you any further?

Kind Regards
Customer: replied 3 years ago.

For Aston Lawyer.. Thanks for your response. If I meet their demands, it means I that lose the right to keep my shed in the garden which will be part of the sale. I think it would be detrimental to the value of the property if we say that you cannot use the rear garden so I would be reluctant to give up just yet. They have only owned the property for about 5 years but it has been in their family for decades so not sure if this has any bearing. I am thinking that perhaps it might be better to suggest splitting the land - this could work if they agree but I cannot see how they can have the upper hand when I officially own the land and I am willling to share it?