Oh God, really horrible boundary dispute

[lalalonglegs]

In 2002, my then boyfriend (now husband) bought a flat in London, the ground floor of a Victorian house. The flat is typical Victorian layout - front room, room behind that which is a bedroom, kitchen covering about two thirds of the width of the building at the back of the house and a bathroom tacked on behind that. It was sold with access to the back garden which was shared with the tenant upstairs (a council tenant - the freeholder is the LA and all these provisions were on the sales details, in the lease and on the lease plan).

Three years ago, the old tenant moved out and a new tenant moved in - by this time my husband was renting the flat out - and a fence went up at the back of the house effectively blocking off access to the garden from the ground floor. All our tenants could access was the side return bit out of the garden.

It took 18 months to get the council to remove the fence and then, two weeks ago, they put it up again. They say that the fence was there when my husband bought the flat (untrue) and that he must have taken it down. They say that the garden was separated in 1977 and that the tenancy to the tenant upstairs over-rides my husband's right to use the garden. Does anyone have any experience or expertise on these matters - I can't believe that the council can say "We made a mistake on your lease, tough luck."

No, the LA can't just say they made a mistake on your lease and leave it at that. Either the lease is correct, in which case they should remove the fence, or the lease is wrong, in which case they owe your husband compensation.

I would suggest consulting a solicitor or the CAB.

Yes, we have consulted a solicitor but he just keeps saying it is "horribly complicated" and that, if we do get compensation, it will be based on the price my husband paid in 2002 which just seems madness since he has been maintaining and improving the garden since then. I am so fed up about the whole situation. The LA just keep insisting we must have known the garden was divided when we bought it and it's all our fault.

Different solicitor? Yours sounds a bit hopeless TBH.

You have it all in writing in the lease, so why is it "horribly complicated"?

OK, the council have replied and said that we knew that their was a fence there when we bought it (we didn't, honestly, it wasn't there and our lease says the garden is shared so how could we possibly have known?) and that they won't show us or our solicitor the tenancy agreement for the upstairs flat which takes precedence over our lease because it contains confidential information. Surely this can't be right or legal?

Agree with littlefrogs, I would try another solicitor it doenst sound like your current lawyer is up to scratch.
I dont know about the the confidentiality point re the tenancy for the upstairs flat but a decent solicitor should.
Or CAB if you dont want to pay out for yet mroe legal fees?

The tenancy can't possibly over-ride your dh's right, as the owner, to use his own garden. That's a ridiculous statement from the council.

The council's argument seems to be 'we can steal your garden because we have some secret papers that we aren't going to show you'. Bollocks to that, frankly. As well as challenging your lawyer or seeking a new one, I'd complain to your local councillor. Sometimes officials only sit up and take notice if an elected representative looks in to the matter.

There may be Data Protection Act concerns over the tenancy agreement but if this goes to court I expect they will be forced to produce it. However, your solicitor may be right that it is complicated.

The fact remains that they drew up the lease. They can't just say "oops, sorry, we made a mistake" and expect to get away with it.

However, one way in which it may be complicated is if the lease was with the previous owner and has been assigned to you. The previous owner may have been aware of the real position and simply accepted that the lease was wrong. If that is the case, your rights for any compensation may be against the previous owner for misrepresenting the property rather than against the council.

have you tried your house insurance legal helpline as well?

I hate land disputes, especially when the council is involved.

You need someone who specialises in land law, and someone who has a bit of clout. Both are expensive. I suggest you pop down to the library and do a bit of reading yourself, and go round to the neighbour's house to have a face to face chat. Explain the situation and that you're happy to resolve it amicably (maybe a door could be made in the fence? Show them the lease, and what you signed.

If they're arsey, then go hire the lawyer and go to court.. but be warned, this sort of dispute can take years.

You need to find out how long the fence has been there for or not, look at google earth and flash earth and other such sites and see what you can see. You may have established a right to access the garden

Post your problem on the garden law forum

Thanks for all of this:

(a) the flat was sold to us by the freeholder (it had had a council tenant in it and was extremely dilapidated so we were the first private owners since the council took over the building in the 60s or 70s. We bought it direct from the LA.

(b)As the council is the freeholder, they look after the buildings insurance, I suspect we will not be covered. As we do not live there, we do not have contents insurance with legal package.

(c)Good idea about going to the local councillor.

(d) The council are saying that the fence was up when we bought it (it wasn't, we are getting statement from auctioneer who sold it) and that it remained in place until it was "renewed" in 2007 - again, utter bollocks and easy to disprove. Therefore, they say, we have not suffered any loss because we did not have the garden in the first place.

(e) What is the garden law forum?

Oh and the tenant upstairs is a nutter and called the police the last time my husband went round to tidy the garden a couple of months ago. A face to face chat simply would not work.

Do you have any photos from when you bought the property showing the lack of fence?

Not really, it was so overgrown etc at the back (and the flat itself was such a wreck) that we didn't take pictures until we had finished. But I think we can get hold of all the estate agency details from when it has been let stating shared garden and probably including a photo of it as well.

The problem is that the council will just insist that we illegally took the fence down at some point after we bought. I'm busy getting statements from ex-tenants and friends and neighbours who know the place.

Go to the Land Registry and ask to see the Map and plans for the property.

You need to contact the solicitor who did the conveyancing when you bought the flat. Purchase files are archived for 12 years so they will be able to retrieve it and check what was in the original conveyance to you. If they missed a discrepancy between what was actually physically there and what was sold on paper then you will claim against their indemnity policy.