• Tenant Claims Access To Garden — no Clear Title For Flat Below

    By Guest on 12th Jul 2023

    This is a regulated tenancy from 1971. The tenant has access to a shared garden, and has used and maintained it since he moved in. The garden is shared with the basement flat below.

    The freeholder of the building is also his landlord. The garden in not mentioned in his tenancy, but it is listed as a shared garden on his rent registration with the VOA. In addition, the freeholder/landlord has confirmed in a letter to him around a year ago, that the tenant indeed shares the garden with the flat below. The freeholder/landlord as never in the 52 years of the tenancy, ever maintained the garden, nor have they ever objected to the tenant using it.

    Because of the tenant’s continuous use over many years, the shared garden now effectively forms part of his tenancy, and there is law and case-law to confirm this.

    The freeholder/landlord is now selling the vacant flat below, and has divided the garden up with fencing, and given the tenant access to a portion of it — around 40%. The basement flat will have 60%. The tenant is not happy with this, but the freeholder/landlord is just going-ahead with dividing the garden, and doesn’t care what the tenant thinks.

    Question: If the tenant writes to the freeholder/landlord, and clearly states his position ie: claims his rights to the shared garden, together with the supporting documentation, will the freeholder/landlord have issues selling the basement flat with clear title? ie: will the freeholder/landlord be compelled to tell any potential purchaser, that the tenant above is claiming access to the whole garden? If so, then that of course will put the tenant is a strong negotiating position.

    Many thanks for your help in advance.

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