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1st floor flat, selling, no right of access to stairs!

(15 Posts)
Loulalollipop Thu 20-Apr-17 13:36:54

Long time lurker, first time poster.
Please tell me this is all going to turn out ok........
We are selling our first floor leasehold flat, building is 2 storeys (old converted row of houses) we own upstairs, neighbours own downstairs, we own back garden with access for them to back gate, they own front garden with access for us to front gate. There's never been any issues with this, we have separate front doors and separate back doors.
We are now just before the point of exchange on our sale/purchase (middle of a 4 person change) and for the last 4 weeks the buyers soliciter has been questioning our right of access to our stairs. At first we thought this was laughable (both sets inside our private external doors, who else would they belong to), then we found out that the area they were arguing about was in fact our access points in the garden. (They thought our stairs were external etc etc!) Winner!
But then it was noticed in the lease that actually we don't have access to our stairs at all (not even common right) as although they fall within our boundary the lease says it relates to the 1st floor only! (Downstairs don't own either as because of layout they are not within his boundary) Common sense says the stairs are ours but obviously the solicitors need it in writing. My solicitors have offered them an indeminity but are doubting the chances of it being taken. If not the chain falls apart and we have to try and get the lease changed (and try and claim negligence against the solicitors who dealt with the purchase of this house 11 years ago). I guess my real questions are has anyone had experience with changing their lease? How long does it take? And how much will it cost?
Sorry for the long post, hope it makes sense!

LittlePickleHead Thu 20-Apr-17 13:44:11

I don't have loads of experience with this - but if you are leasehold and the stairs are demised (rather than owned) by you, doesn't that make them the responsibility of the freeholder? Is there anything about common areas and maintenance in the lease? Anything about right of access to your property?

We have changed our lease during our last attempt at selling to show colour plans with right of access etc. However we did not actually change the ownership of any part of it. I would imagine that it's not as simple as just changing the lease if you don't currently legally 'own' the stairs.

Amending the lease to show right of access over the stairs may be a lot easier, but you would probably also have to resolve the issue of who maintains them (usually the freeholders responsibility).

I can dig out the lease expert I was in touch with when we amended ours if you are in London?

Loulalollipop Thu 20-Apr-17 15:57:09

Thanks for the reply. No the lease shows the common access points in a hatched box in our gardens but the stairs are not talked about whatsoever. Neither is right of entry (other than the right of entry through the outside areas.). Both sets of stairs are inside our property (front ones are actually part of the hall stairs and landing, no internal door, all one room.), we don't share them with anyone else and no-one else has any access to them whatsoever (nor would they need access!)
The solicitors say we are probably going to need a deed of rectification to include the stairs into our property. At the moment they are "limbo" obviously part of leaseholders land but we can't prove we have a right to use them!
As far as we were aware they have always been part of our flat, they are decorated and carpeted (by us) and there is no divide physically or theoretically to separate them. In theory we own about the top 4 steps as they are within the 1st floor flat.
No I'm not in London (down on the south coast) but thanks for the offer of experts details.

keely79 Thu 20-Apr-17 16:02:39

When I bought a flat a few years ago I needed to get the sellers to rectify the lease as it was missing the balcony (a good spot by my solicitors...)

I don't remember it taking too long but I think it will depend on the landlord - in that case, the freehold was held by the owners of the flats (through shareholdings in the landlord company) so it was quite easy for them to get it done.

Loulalollipop Thu 20-Apr-17 16:37:01

Our leaseholders are notoriously difficult to get hold of so I'm preparing for the worst (although management company are fab so hoping they'll help!
Solicitors are doing the usual *sharp intake of breath "lots of time, lots of money" response but refuse to give us an idea of what lots means until the indeminity has been refused by our buyer.
From what I've googled 4-8 weeks seems to be the norm and about £1000 but are luck will give us 6 months and thousands!

Loulalollipop Thu 20-Apr-17 16:48:59

Our not are

SleepBecomesHim321 Fri 21-Apr-17 09:57:08

We had to do a new deed of something or other when we sold our first floor flat in similar but not identical circs. Was more daunting in prospect than reality. We had shared freehold so had to get our (very odd/difficult) neighbour to sign the new plan of our flat's layout but our estate agent did a lot of that legwork/talked her through it.

Allthebestnamesareused Fri 21-Apr-17 17:38:35

An indemnity policy would definitely be the cheapest way to resolve the issue.

Loulalollipop Sat 22-Apr-17 01:00:18

Unfortunately an indeminity is unlikely to sort this, the indeminity company won't provide one that covers all issues related to the stairs. They have provided on me that covers some issues and we are waiting for the outcome of that from the buyers solicitor. My solicitor thinks they will turn it down!

Allthebestnamesareused Sun 23-Apr-17 15:10:22

Remember whatever it ends up costing you to sort it all out you should be able to claim against the solicitor you used when purchasing the flat as they negligently failed to spot the issue and point it out to you! If the sale falls through it woukd include costs relating to that too.

Muffinbutton Sun 23-Apr-17 17:38:31

When we purchased our previous leasehold flat we had an external storage cupboard that wasn't shown on the deeds.
We had a deed of variation drawn up to include it. It did take a few months, but with both parties in agreement we still exchanged and completed in the mean time.
As the buyer it was stressful but the solicitors sorted it all out and the seller paid the cost (about £500).
It reared it's head again when we came to sell, but I think our purchaser's solicitor was a 'cheapy off the Internet job' and didn't seem very competent!

Mandolinoparadiso Sun 23-Apr-17 18:28:54

We had exactly the same problem when we bought our flat – the stairs, that were used only by the upper flat and behind the front door of the flat, were not included in the lease, so in theory there was no way to access the flat. The lease was changed, or a part of it, and I seem to remember it was all quite straightforward and didn't cause any significant delay. But it was noticed quite early in the process and the freeholder is a London council so is easy to contact and has procedures in place for this kind of thing.

Loulalollipop Sun 23-Apr-17 19:27:08

Thanks for your replies, my ea has said she has sold some of the flats 4 or 5 times over and this has never been brought up before so obviously we were just unlucky.
Muffin was there any problems with exchanging and completing in the meantime? Was it just a case of having it written into your contract that your seller would get it done and pay? We'd be more than willing to do this if it means keeping the chain together!

Muffinbutton Mon 24-Apr-17 22:32:08

There was no problem with exchange and completion. We got it included as a condition of the contract. Not sure what the exact terminology was though.
Our solicitor was very on the ball. I doubt we'd have spotted it otherwise.

Loulalollipop Tue 25-Apr-17 13:39:38

Thanks, that gives me hope! We are on the 5th day of waiting for a response from the other side now, totally driving myself insane with impatience. My soliciter chased it yesterday but no reply! Feel like we are in limbo at the moment and totally useless as I can't chase anyone anymore than what I am and I'm not getting any answers!

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