Shared garden/buying freehold - anyone know about this?

[laundryismylife]

I own a ground floor flat in a converted Victorian house on a very long lease. The back garden is shared with the flat upstairs which is occupied by a tenant rather than an owner occupier; the owner of the upstairs flat owns the freehold for the whole building.

The upstairs neighbour is a bit odd and very strange about the garden: won't do anything to maintain it but hates us going into it, erected a fence to stop us going into it which took a year of legal back and forth to have removed. I am now considering buying a 50% share of the freehold in order to see if I can have the garden divided to make two private areas rather than one shared one.

As a 50% co-freeholder, would I be able to force this issue with the other co-owner who currently doesn't see the point or would we simply be locked in a stalemate? Anyone able to give me a pointer before I start investigating how much it would cost to buy?

TIA

As I understand it, when you were buying into the freehold things like that would have to be specified in the paperwork you adn the other side's lawyers sorted out.

Certainly the deeds would need to reflect who had rights of access where, and where the boundaries were.

If the current freeholder wants the sale, why don't you make dividing the garden a condition of sale? Certainly the lawyers would want it clear who owns what, anyway.

The current freeholder is completely apathetic (which is another good reason to buy into the freehold). I don't think they (it's an institution) particularly want a sale so making it a condition won't be viable, it will need to be something I can push through subsequently as someone whose opinion and wishes hold equal weight.

So you are purchasing 50% of the freehold and the freehold will then be subject to your exisiting lease (and that for the flat above - ie will you become entitled to half of the income of the other flat)?

Leashold/freehold issues on flats and shared buildings is complex and I am not exactly sure of what precisely is happening in your case but the basic principle is that as co-owers (tenants in common as opposed to joint tenants which would not seem appropriate) of a freehold property, you both own half of the whole so the physical split which you desire is not something which you will be able to force.

If there is no boundary marked then I would think you are going to have a bit of a job to enforce it. I own share of freehold in a house divided into 4 flats now and that's just about manageable, when I had a flat in a house divided into 2 and was in the same situation it was a bloody nightmare.

You might want to take legal advice to see how much it would cost to get the garden divided and whether it would be possible to enforce it before you try and buy the freehold.