When is a Communal Garden not communal anymore?

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Joined: Tue Oct 09, 2018 5:53 pm

When is a Communal Garden not communal anymore?

Post by Narayan11 » Wed Oct 10, 2018 4:33 pm

I bought a property in a council estate (consisting of 16 properties, currently some council tenants and other leaseholders) from a leaseholder who lived in that property for a bit more than 40 years. The original land registry shows that there is at the back a one big communal garden for use by the 16 properties.

About 30 or 40 years ago, the local authority decided to divide the communal garden into 16 individual sized gardens, so each property has its own garden (despite different sizes) independently if you are council tenant or leaseholder at that time. They laid square stone blocks that divide each gardens (so easily identifiable) and these are used as pathway too. These are maintained by the council i believe (despite never seen anyone there in the last 2 years since i bought the house).

This division of garden however has never been updated in the leases or the land registry. I am aware that some leaseholders have bought their respective garden bit and added to their leases and this was something i was planning to do at a later stage, since the person i bought the property from never had the chance or money to do so.

My issue is that the tenancy manager of the local council that manages some of council tenant flats has given one of the tenants a letter saying the gardens are communal and now this tenant has decided to take half of my garden has his. Not to mention i have not been informed or consulted about this decision or had the chance to dispute it by either the council's leasehold manager or the tenant manager. The council tenant in question has decided to cut my plants down and lay down his on what it is in fact my garden.

Am i right to think, that once a local authority decides to divide a communal garden (as explained above) into individual parts, at that moment in time, that garden is not communal anymore ? Thus, the local authority has no power to allow its tenants to use the gardens of the other leaseholder/tenants as its no longer a communal space. I understand that i am able to apply for adverse possession to add the land to the lease but i am shocked that this local authority tenancy manager has the power to do this, which i am sure is illegal. Any help would be much appreciated.

The photo shows my garden (center and some of the other gardens left and bottom) and then the stone pathway that splits all gardens into individual gardens. When the estate was built, there was no stone path, all was grass and thus a big communal garden.


Hugo Ramos
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Re: When is a Communal Garden not communal anymore?

Post by jonahinoz » Thu Oct 11, 2018 9:34 am

Hi Ramos,

What were the terms of the leases when the gardens were all owned by the LA. Were the tenents responsible for maintaining the garden (singular), or were they only responsible for their own identifiable patch. What does your Land Registry entry say about what you own, and what rights do you have?

If the gardens are communal, how can your neighbour claim some of it as his own. Does your Land Register give you any rights to wander at will over the garden? Could it be that your neighbour has rights over all the original garden (singular), despite some of his neighbours owning bits of this garden?Have you seen the Land Register of such an individual garden? Have the gardens been included in the Land Register for the associated houses, or are the gardens under a seperate register? It sounds a mess.

I suspect that you have no rights over your garden, subject to any claim for adverse possession, and anything writen into your Register. Have you discussed this with any of your garden owning neighbours, who might be vunerable to similar action.

There is something in my mind tat when you buy a property, you also buy all the rights that go with it, both detailed (in print) and "apparent" on the ground. I'm sure some of our experts can put that in better terms.

If the gardens are communal, your neighbour should not be able to erect a fence, or claim some of it as his own. Equally, if the garden is communal, and some people use part of that garden, can they claim to be using it all, thereby baring you from claiming adverse possession on your bit?

I would expect you to have an gained an easement to "enjoy" your alloted area, even if you cannot claim to possess it. But hey, what do I know?

John W

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