0:01 AM, 12th August 2025, About 4 months ago 9
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Hi, I am about to do a mutual exchange with a lady who has a 3-bed house with a shared communal garden.
Her house is a semi-detached house and has a side gate with direct access to the garden. The side gate is accessed through the front garden, which is for the sole use of her house.
The house next door is a house converted into 2 flats, and they also have direct access to the garden, with the top flat having a staircase into the garden and the bottom flat having a back door directly into the garden.
The lady I’m swapping with has used the garden for the last 20 years + years. She has paid to have it decked, has a little bar in there and even a hot tub. She and the ground FF neighbour agreed that the top floor could section off their own part of the garden, an agreement spanning 8+ year.
Her landlord has just informed her that the garden is not communal and is for the sole use of the ground floor flat, and apparently it says so in his tenancy agreement, despite the house and other flat having direct access.
The lady and, in turn, I, want to continue to have access to the garden. The land registry also confirms the house has garden access
What are our options?
Thanks for reading
MLB
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Paul Essex
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Member Since June 2019 - Comments: 653
9:02 AM, 12th August 2025, About 4 months ago
The tenancy agreement cannot override the lease, make sure the lease confirms communal use and politely ask the freeholder to sort the errant tenant.
Kizzie
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Member Since October 2022 - Comments: 379
9:54 AM, 12th August 2025, About 4 months ago
Is the landlord also the freeholder and of both properties?
It’s not clear who holds what type of agreement?
Also land registry confirm access . Is this to all these properties ? think if communal garden it would be under a separate registered title /held in trust
Suggests the freeholder has not kept an eye on what is going on
Judith Wordsworth
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Member Since January 2015 - Comments: 1346
10:05 AM, 12th August 2025, About 4 months ago
HMLR documents ie Title Plan, Leases, Head Lease if there one, registered with the Title will take precedence over any tenancy agreement.
Judith Wordsworth
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Member Since January 2015 - Comments: 1346
10:08 AM, 12th August 2025, About 4 months ago
Reply to the comment left by Kizzie at 12/08/2025 – 09:54
A communal garden would not, should not, be a separate Title but is included and usually colour coded marked up on the Title Plan of the Freehold building.
Individual flats will also have any internal communal areas eg hallways, stairs etc colour hatched or outlined to differentiate from the Leasehold demise.
Kate Gould
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Member Since February 2025 - Comments: 53
10:19 AM, 12th August 2025, About 4 months ago
You are presumably using conveyancers to act for you on the “swap”. They will be looking at all the registered titles and are supposed to advise you on what rights you will have to use the communal garden once you own the long leasehold of the house. The current owner’s solicitors should be assisting by replying to standard and specific enquiries.
Kizzie
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Member Since October 2022 - Comments: 379
10:22 AM, 12th August 2025, About 4 months ago
The Communal garden or area will have maintenance costs and whether the property or properties share in proportion the burden of maintenance costs set out in the Agreements.
How are maintenance costs collected and who undertakes maintenance and repair?
Kizzie
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Member Since October 2022 - Comments: 379
10:27 AM, 12th August 2025, About 4 months ago
Reply to the comment left by Kate Gould at 12/08/2025 – 10:19
Yes I agree. A swap or exchange cannot be a private transaction
Freda Blogs
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Member Since July 2013 - Comments: 737
10:27 AM, 12th August 2025, About 4 months ago
Subject to establishing the legal position via the Land Reg documentation, there may be some options for you through documentation via Statutory declarations of the long standing use as separate gardens but you will have to have solicitor involvement and it may be a long road.
The freeholder has seemingly acquiesced in the breach of the use of the communal garden in two units over a long period. The tenancy agreement giving use to the GF flat in isolation may just be sloppy or thoughtless drafting and should be capable of being remedied to the correct legal position, albeit at the FH’s cost and inconvenience.
Lots of permutations here, possibly capable of fixing, but goodwill and cooperation is needed from all parties, otherwise it may be a costly and painful process.
Blodwyn
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Member Since August 2016 - Comments: 506
11:00 AM, 12th August 2025, About 4 months ago
Whatever the merits, tell the other parties that you won’t proceed until the matter is settled completely!