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UK leasehold purchase: the demise and our right to park.
June 17, 2014 11:26 AM   Subscribe

(YNML) We're purchasing a leasehold property in the UK. The lease for this property says "The Demise hereinbefore contained includes the following rights:- ... and the exclusive use of the parking space numbered 1 shown hatched red on the plan ...". Our solicitor has been saying that 'as the right is exclusive this does not form a legal right under common law and as such may be denied by subsequent Landlords.' I don't understand why this is an issue, and as it's held up our move, I would like to understand. Although I've asked my solicitor, I suspect Mefites can give me a clearer answer! More details inside...

My reading of the language in the lease is that a) we have exclusive use of the parking space, but this is not an exclusive right, b) the right to use the parking space is included in the demise, and I don't see what the difference between the right to use the parking space and the parking space itself being included in the demise is.

The main concern our solicitor seems to have is that a future landlord might revoke the right, and hence reduce the value of the property, jeopardizing our ability to resell and the bank's security. But if the right is included in the demise, how could a future Landlord modify this without a deed of variation?

The other complication is that our mortgage lender has attached the following (ambiguous) special condition to our mortgage offer:

'Offsite Garage/Parking space - If the property has an offsite garage or parking space it must be included in our security.'

Does this refer to an offsite garage and an offsite parking space, or an offsite garage and any parking space? If it's the latter, then is it sufficient for the right to use the parking space to be included in the demise, given my reading is correct?

A clearer explanation than my solicitor is likely to give would be very welcome!
posted by jonrob to Law & Government (2 answers total) 1 user marked this as a favorite
 
Not your lawyer, not even a lawyer, etc. You need to get your solicitor to define the word 'exclusive' in this situation. My (quite possibly incorrect) reading of the situation is that the wording says that freeholder will let you and you alone use that bit of land as a parking space and nothing else until they (or a subsequent freeholder) decide otherwise and that the parking space isn't part and parcel with the flat you're trying to buy. The use of that land for its current stated purpose as a parking space is included, but if the freeholder decides that they don't want a parking space there for whatever reason and want to repurpose that land by building on it, landscaping it, turning it into an urban chicken coop or whatever else takes their fancy, you're shit out of luck. Basically, while it's a parking space it's yours to use, but the lease doesn't require that bit of land to always be a parking space, and you've got no right of use or protest if it becomes anything other than a parking space.

If your solicitor is anything like the one we used when we bought Lawson Towers, you're paying them a fair amount of money and they'll do the least amount possible to earn it unless you ride them mercilessly. So, demand that they explain it to you in such a way that you understand the terms. You might have to demand this more than once. Good luck!
posted by peteyjlawson at 2:41 PM on June 17


IANYL AND TINLA...

What your solicitor may be getting at is that the rights granted to a tenant under a lease (such as a right of way to access the premises, a right to access utilities running under other land etc.) must effectively be what is called an "easement" in order to be binding on the land (and therefore bind future owners of the land).

There are a couple of technical rules about easements and, as explained at page 5/6 of Land Registry's practice guide , (http://www.landregistry.gov.uk/__data/assets/pdf_file/0012/22224/easements.pdf) a right cannot count as an easement if the person who has the benefit of it (i.e. you) has "exclusive possession". With a right such as a right of way, lots of people could use it, so you would be in exclusive possession.

The argument is that, as only you are allowed to use that parking space, you have exclusive possession of it and therefore it cannot be an easement. You need to get your solictior to explain whether they believe that the bank will have an issue with this and whether or not there are any steps that can help (e.g. actually getting a lease of the space itself, or getting a more general right to park). It's a fairly technical point and your solicitor should be explaining the risk to you and, in particular, the impact on the bank.
posted by Mattat at 6:30 AM on June 18 [1 favorite]


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