Garden Not Mentioned In Demise But Shown On Lease Plan And Land Registery

I am going through purchase of a leasehold flat. The lease demise does not specify the garden. However, a not to scale plan of the entire property shows this outlined in red in addition to the premises. If it were to scale it would be showing only part of the garden.

The land registery document for the flat shows the entirety of the proerty and land.

My solicitor asked that the vendors solicitor contact the free holder to get this ammended in the lease. They refused. They have set up an indemnity policy which my solicitor specified to be reworded to reflect the actual problem.

Will this be a problem for the mortgage lendor and will this cuase me a problem with resale in the future?

4 Answers

This sounds like a case where it is possible to see both points of view. On the one hand, the Land Registry title plan together with the description contained in the property register is where you would look to ascertain what is included in the property but on the other hand the Land Registry title plan is not intended to be definitive as to the extent of the land in the title so if there is evidence that it is wrong (from the wording of lease and plan in the lease for example) it could be challenged. If I were acting for a seller I might say that the Land Registry plan together with written confirmation from the landlord that the whole garden is included should be enough to satisfy the buyer. If I were acting for the buyer however I would be warning my client that such written confirmation may not be binding on a future owner of the freehold, that the benefit might not pass to a future owner of the leasehold and that rightly or wrongly the issue might deter future would be buyers. Whether it is a problem to your lender will depend on what your solicitor reports and that is his judgement to make. This is an issue that could perhaps be resolved after completion but of course there are no guarantees the landlord will cooperate.

HI,

Thank you for your answer. Yes I would be satisfied with written confirmation from the landlord, although there has been flat refusal to even contact them by the vendors solicitor. Saying it will take too much time.

I have been told that the indenminity insurance is considered void once approaching the landlord to ask them to confirm infact the garden ownership would fall to the owner of the premises.

The freehold is owned by a huge company who own an excess of 25k freeholds. So perhaps they wouldn't sell any time soon and there has been no issues around this with previous owners (I don't believe it's even been a discussion between solicitors during conyancing)

I have also been told now that it is known, the current seller will have to delcare what is missing in the demise, as would I if it were to go on sale again to another buyer. Is that true?

You wouldn't have to declare it expressly because you would be providing the buyer with a copy of the legal title so would be declaring it in that way. If a buyer doesn't examine the title properly that is his problem. If you are asked a direct question however you cannot lie. Yes approaching the landlord would invalidate the indemnity and if your conveyancer can find a policy that suits then perhaps that is the way to go. It doesn't fix the problem though and future buyers may not be happy so you may have to rectify the title when you sell.

They will not even write to the landlord so i have no written confirmation. Flat refusal. The title from land registery shows the whole garden outlined. However, as the lease makes no mention of land there is nothing to back it up. Did the land registery make a mistake or is there something else which is since missing? Who knows. The demise lists only internal walls, ceilings, floor boards, pipes ect. There is brief mention of responsibility of cost for repairs to the forecourt. No mention of any land. The lease plan doesn't even have the words garden or land or patio ect written and underlined. All the rooms and the forecourt to the front are written on the plan and underlined. So not an amaxingly written lease or not it clearly excludes the garden land. No hatches arrows or scwiggles to indicate further land due to no page space let alone simply written garden within the demise or on the plan.

So my understanding now is much better. Im greatful for your answers. The policy wording being arranged by the vendors solicitor have so far been inadequate. I am loosing trust and faith in the whole thing.