Re: Excluded from communal garden


peterwn wrote:

Ignorance of Law is Ignorance of Rights wrote:

Can someone confirm my understanding of this section of the lease
agreement: that all agents, tenants, representatives and guests of any
of the Leaseholders are entitled to access the garden (I didn't get the
latter bit of Legalese)? Anne would thus be allowed usage of the
grounds as a (non-paying) "guest" of her family, the leaseholders.
Anne is an occupier and in this regard would be a tenant. Given the
extensive nature of the group who have access, it is extremely unlikely
that a court will accept any argument that she is not covered by this.
Against that interperation is a different definition of those who has
access to common areas ie residents and visitors. This different
definition may be there for a reason or it may be sloppy drafting.
However check that the lease does not imply that the garden is
principally for B&B's unit and access by others is for maintenance or
emergency purposes only.

Hi Peter. Thanks for your very helpful reply.

I have read a bit more of the lease agreement and it would seem B&B are
apparently guilty of violating the terms of the lease. I cite a later
section:

"If an so long as the Tenant shall punctually make payment of the
Interim Charge and the Service Charge at all times and in the manner
hereinbefore provided :-
1. Full right and liberty for the Tenant and all persons authorised by
him (in common with all other persons entitiled to the like right) at
all times and for all purposes in connection with the permitted user of
the Demised Premises to go pass and repass over and through and along
the Common Parts including the main entrances and passages landings
halls and staircases leading to the Demised Premises
PROVIDED ALWAYS the Lessors shall have the right temporarily to close
or divert any of the Common Parts subject to leaving available
reasonable and sufficient means of access to and from the Demised
Premises AND PROVIDED FURTHER THAT the Lessors shall have the rights at
any time and from time to time on giving in each case at least three
months written notice to that effect to the Tenant to exclude from the
easement right and liberty granted by this paragraph the use of all or
any part or parts of the front garden or land forming part of the
Common Parts but not so as to make access to the Demised Premises
impracticable."

AFAIK Anne does stay there rent free, but she does pay the service
charges on her family's behalf on time.

So them unilaterally changing the locks without any notice constitutes
a breach of the lease agreement.

B&B are now ignoring correspondence regarding the matter. Apart from
taking this up with a property solicitor (which I think is one notch
above what we all want to do), is it possible to get the Land Registry
or Council to intervene?


Bill & Bridgette are being stubborn, and have vociferously defended
their right to exclusive access. They have:

(2) Have threatened that should Anne enter the garden, she would be
trespassing and further action taken.
If Anne's lease indicates it is a communal area to which she has
access, she is pretty well safe from a trespass action as she has no
intention to trespass. B&B would need to produce evidence that they
were sole occupants of the area for any trespass action in tort or
under criminal law to succeed. They cannot refuse to produce evidence
of sole occupation and expect the other party to defend the trespass.

Yes, good point. Well noted.

That they refused to produce evidence of sole occupancy when requested
would not exactly help their case.

Yes, I agree. There are only two justifications I can see for their
evasive and intimidating attitude.

One is that their lease agreement says they have exclusive access while
ours doesn't, so they're genuinely exasperated whilst simultaneously
couldn't be bothered to "prove the obvious"

Two is that their pugnacity has worked in the past on an amiable
legally-ignorant person (not said in a bad way of my friend) so they
are trying to maintain exclusive access via bluster.

All other residents could turn the tables on B&B by gaining entry and
changing the locks (but be careful!!) and refusing to give B&B a new
key unless they acknowledge it is communal property and pay say 10
pounds to each resident for damages and rent for the time they had
exclusive unlawful occupation. Correction - B&B have alternative
access and would reasonably expect to use the garden for emergency
egress - so this would not work.

It may yet be considered exclusive unlawful occupation. Although B&B
had alternative access, none of the other residents did (they had to
access it via a door on the fence along a public footpath). It was this
lock that B&B changed, thus giving them exclusive access. The other
residents never had access to the door via B&B's flat anyway.

One could regard this option as playing with fire, but it might be
worth considering. The worst that could happen is that B&B could call
the police, so have copies of leases, lease plans etc ready. The
police are not supposed to intervene in 'civil' disputes unless there
is a possibility of a breach of peace.

I will try things in this order:
- Approach the Council or Land Registry (please advise) for any
advice/action they can offer. I will simultaneously inform B&B that I
am approaching the authorities with the details of the case. Fingers
crossed they capitulate!
- Attempt your suggestion of calling a locksmith and charging the costs
to B&B. Anne will initially have to pay, but a small claims action will
be taken against B&B. Inform them when I intend to call the locksmith
in and that police will be in attendance.
- Seek legal action from a solicitor specialising in property law.

Frankly although B&B are out of order here, I have heard of much worse
neighbours and none of us would like to see B&B kicked out under messy
"neighbour dispute" circumstances, generating further animosity. If we
get the Land Registry/Council involved, is there a chance the matter
may snowball into something bigger that no party wants, and result in
annulment of B&B's purchase of the property and it going into
arbitration?

If the council investigates, they will see B&B have also violated other
terms of the lease (which the other residents have graciously
overlooked), such as having uncarpeted flooring and obstructing the
hallway with motorcycles.

"At all times to cover and keep covered with carpet and underlay the
floors of the Demised Premises other than those of the kitchen and
bathrooms and at all times suitably and properly to cover and keep
covered the floors of the kitchen and bathrooms in the Demised Premises"

.

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