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Thomas, Lawyer
Category: UK Property Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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I am in the process of buying a ground floor flat with a share

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I am in the process of buying a ground floor flat with a share of freehold.

The flat has been advertised as having a demised garden. The garden is accessible from the lower ground floor flat as well and borders to communal gardens and I was told that the inhabitants of lower-ground floor flat have just the right of pass-through to the communal gardens. Subsequently, it turned out that there was a misrepresentation by the agent and the garden is not demised to the flat but belongs to the freehold.

According to the title plan some common areas are included to the flat, namely the corridor on the ground floor and the entrance passage to the house (from the pavement to the entrance door) ncluding the stairs. The previous owners have been taking care of the garden for more than 20 years, they had a permission to install french-doors to the garden and the lower ground floor owner does not use the garden at the moment as he enters the communal gardens directly. The current lease is is standard with respect to the gardens (there is a very small garden at the entrance as well) stating that it can be used for access and recreation in common with the other tenants and under reasonable regulations and restrictions to be imposed by the freehold.

I was told demising the garden will be a long process, requires changing the leases of everybody in the house, difficult to negotiate, it will be expensive and realistically it cannot happen before the sale is finalized. Also, in regard to the common areas that are demised to the flat I was told that it is better to transfer them back to the freehold because otherwise there is a danger that I have to cover the bills for their repair but still have to provide access for the people living in the house.

In general I am interested whether there is a way to use the common areas now demised to the flat to gain better position with respect to the garden. I am also interested in a solution that will be easy and quick to implement and will preferably not require changing everybody’s lease. For example, can I exchange a right for use and taking care of the common premises with the freehold for the right to use solely the garden and taking care of it? Is it really having the common areas demised to the flat only a disadvantage and there is a definite need to be include them back into the freehold before completion? What if I do not ask for changing the title plan?



Thanks for your patience.

I’m afraid that I cannot see that you have a lot of bargaining power to exploit to your advantage.

The common areas that are demised to the flat are not really at all to your advantage because, as has been suggested, it is probably the case that you are obliged under a tenant covenant under the lease to keep the demised premises in repair. This is effectively a burden on you and is not therefore an advantage in terms of bargaining power. Additionally you would probably not be able to refuse access on foot through these areas because the other flat owners would be able to claim an easement of necessity on it if they require it as sole access to their properties.

The freehold company would probably be doing you a favour in agreeing to execute deeds of variation to have the common areas taken out of the demise.

Even if it were the case that the freeholders desired the common areas to be included within the freehold it is no material advantage in terms of attempting to get sole rights on the garden because in order to do this you would have to get the owners of the property who have a right to use the garden to agree to give it up. If they would even consider this they would probably charge a fee and then there would be the administration of sorting it out by deeds of variation which would take time because there are a number of parties to deal with.

I’m sorry but I cannot see a quick an easy solution to this, sometimes there just isn’t one I’m afraid and it may be that you are better either reconciling yourself with this and proceeding to exchange on this expectation or otherwise withdrawing from the sale.

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Kind regards,

Customer: replied 4 years ago.



Thanks for the reply. I just need a bit if additional clarification on the points below for the preferred couse of action.


My feeling is that currently most of the flat owners in the house actually think that the garden is actually demised to the flat.


I suppose then the way to proceed with the purchase is to ask the common premises to be excluded and eventually ask for a discount before exchange given the misrepresentation.


Is there a big danger if I keep the common premises within the title plan. Up to now their repair has been included in the service fee.


I would like eventually to demise the garden. Should I just give it a "speculative" try to ask to exchange the common premises for the garden (they are approximately same size, around 12m2), see if there is by chance an agreement and eventually finalize after the purchase. Or should I ask directly the freeholder for an estimate for demising the garden before completion and then deal with the whole process after?






The agents mispresentation has got nothing to do with it really. The Sellers have tendered the correct lease and so have not misrepresented the position. You don't have any legal recourse against them, the only bargaining power you have is to withdraw if you don't get a discount.

It may be that you can sort out the common areas before exchange, I don't know. It would be prudent to do even if the repair costs have been folded in to the service charge, because technically if they changed their policy for this then you would be on the hook so I woudl endeavour to get this changed pre-exchange.

It's worth tendering an opinion on demising the garden from the freeholders and the owners with access, but it's not enforceable against them so it's really just to check the lay of the land.

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