Potential issues with a shared garden

[Jmcf7]

We are looking to buy a ground floor flat with shared garden (The garden flat also owns the freehold).

The garden is technically shared with the flat upstairs, however, they do not have access accept through the ground floor flat (they are terraced houses so there is no other way to access). Previous tennants in the ground floor have let the lady who lives upstairs through to the garden. She is not willing to sell her share of the garden now but has said that when she sells the flat in a few years, she will sell it to the garden flat but is unwilling to put this in writing (she also has a short lease so will require the freeholder to extend this).

Does anyone know what the potential legal risks are?

I'm happy to wait a few years and buy the garden at a later date and am also happy to let the lady use the garden in the meantime, but other buyers have pulled out because of this and I want to make sure that we are not entering a difficult legal situation.

Any advice would be gratefully received!

[lalalonglegs]

It would be worth checking that the woman upstairs (or whoever takes over the lease) does not have the right to erect a staircase or some independent way of getting to the garden.

Without going into boring details, we are currently in the middle of a four-year long legal battle with the freeholder of a property we have a lease on who has blocked off access to our "shared" garden. I see the freehod comes with the bottom fat but if you think the upstairs neignhbour is difficut, be carefu.

[nocake]

I would check what legal rights the upstairs neighbour has to access the shared garden. If her only access is through your flat and she has a legal right to that access then I'd walk away. She might be very friendly and amenable but if she sold and didn't sell her part of the garden to you (and there's no reason why she would, just because she's said now that she will) then the future owners might make life difficult.

[starfishmummy]

Wonder what the mortgage lenders would think of this situation too??

[oldenoughtowearpurple]

Think about resale - you might be prepared to put up with a stranger accessing the garden through your flat but most others wouldn't so you would probably have a hard time selling. I wouldn't consider it for a minute.

[QuintessentialShadows]

Surely there are plenty of other garden flats where your upstairs neighbors don't have right of way through your home?

Or is the flat extremely cheaply priced due to this?

I would ask to see the deeds of both properties, and see what it says about the right of way. Get a lawyer to check it out.

Is the garden divided in two?
Would you be prepared to let her build a staircase so she can access her part without going through your home?

[QuintessentialShadows]

Also check whether she actually OWNS part of the garden (it should say in her deeds) or if the current freeholder merely have granted her use of garden.

This could mean that the right of use is not transferred to the new owner.

[Jmcf7]

Thanks for the messages.

The garden isn't divided into two and would probably be too small for this. The flat is a lot cheaper but, at the moment, we only have information from the estate agent and I'm always cyncial about what they have to say! There has to be a reason why three other buyers have pulled out - I think we'll get legal advice before going any further as it does seem as though there is potential for future problems which I'd rather avoid.

[trixymalixy]

No no no no. Avoid like the plague.

We shared a garden with upstairs neighbours. The first couple were lovely and we had no problems and they then moved and a couple of psychos moved in who made our lives he'll and we eventually moved because of it.

I can't imagine having to have had to allow them access through my house given that we couldn't be in the garden at the same time as them it was so stressful.