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LondonlawyerJ, Solicitor
Category: Property Law
Satisfied Customers: 818
Experience:  Experienced solicitor
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My daughter has a first floor flat which has access to outside

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my daughter has a first floor flat which has access to outside space that she uses as a garden area. A neighbour now claims he has right of access to the space. He has accessed the space by climbing through a window and moved plants and pots she keeps there. There is no direct access from his property. She has used the area for over 5 years (as did the previous owner) but now the neighbour is claiming he has access rights. There as 3 lease hold flats in the building and the freehold is held by a third party. What can she do to resolve the situation
Hello, I am a solicitor with over 20 years experience. I will try to answer this for you.
Her lease should deal with ownership/use of the garden. She needs to look at that first.
Customer: replied 2 years ago.

ownership is not stated in lease but garden is not included in common areas. has been used exclusively by her and previous tenant. Now neighbour above her is claiming its common area and that he have been using it as such. does the fact she has used it for 5+ years not allow her to have some form of implied right of usage?

So the lease is entirely silent on the garden? Not said to be accessed by any particular flat. Can you help me with the lay out please. If your daughter is on the first floor, which floor is this other leaseholder occupying. You say there is no direct access but how has he gained access then. Is there side/gate access from the front of the building or anything similar?
Long usage will probably not imply rights in this situation.
Customer: replied 2 years ago.

Building is 3 stories. Come in front door, down corridor then up stairs. On the first floor landing there is a window which opens on the garden area, my daughters front door is on first floor landing. Stairs lead to two other flats. To access the garden you have to climb through the window - not easy as bottom of the window is 3 feet from floor - there is no other access to the area. The "garden" area is the roof of the ground floor shop. The owners of the shop have no issue with her using it. She has doors in her kitchen that opens on to the area. There is only wall to one side and the other has the window from the 1st floor stairs. There is a final wall - about 3ft - that defines the area. Anyone standing on the area can see in to her bathroom (thru its window) and kitchen (two glass doors).

It sounds to me as if it may well be that no one has legal access to this area if it is the roof of another property. If it is not referred to at all on the lease it may not be part of anyone's property and is used with the permission of the owner of the shop. When you say that the shop owner's don't mind they would only be able to comment if the roof was theirs and they had effectively given permission. If this is the case they are the ones who can decide who can have access to the roof.
What to do will depend on the shop owner's attitude. They might only give permission to your daughter or they might withdraw all permissions. The best policy might be to quietly share the roof with the other leaseholder.
Customer: replied 2 years ago.

that's the nub of the problem. He is abusive and rude, has made threatening remarks and has on occasion enter my daughters property without permission. Hence my concern for him having access to area. I will check to see if the shop or the freeholder actually owns the space and see if she can get exclusive use. Thanks for your help.

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