Help please! - defective lease

[investor68]

Hi there,

I hope someone can help. I'm in the middle of trying to buy a flat to let out but have just looked at the lease and it specifically describes the "demised premises" as including both the flat and a garage located in the garden. The garage can be seen drawn on the plan but the problem is that it doesn't actually exist on the ground - it is now just garden. I'm really worried now that this is going to be a problem and that the lease is defective? Does anyone know anything about this? What would happen - would I be forced to rebuild it and would that be sufficient? Will I have problems when I come to sell? Will my lender refuse to accept it?

It's a bit contradictory because there is a clause that the garden must only be used as a garden and even if the garage was rebuilt in it there is no dropped kerb or ability to access it as the garden is all fenced off.

Really worried so thanks in advance for any advice on this.

regards,

[lawstudent]

It does sound a bit of a contradiction but it seems unlikely that, in the circumstances you describe, you could be required to build a garage.

Of course, reinstating the garage could add value, so this might be an opportunity and not merely a problem. Apart from appearing on the plan, is anything said about the garage in the lease?

How long ago did the garage disappear? It may be that the freeholder has effectively acquiesced in its non-existence (by what Paul-f would describe as the effluxion of time)

You should ask the freeholder and seller for their views and, if necessary, ask them if they would agree to changing the terms of the lease.

[Poppy]

Amending the lease and plan is the ultimate solution and perhaps the most costly. This would involve the freeholder and current lessee agreeing to these changes and hiring a solicitor to carry out the work.

Perhaps a simpler solution would be for your solicitor to write to the freeholder and ask:

do you acknowledge that despite the terms of the lease referring to a garage, there is no existing garage on the land at the time of this purchase?
do you intend to make future lessees reinstate a garage on the land?
If the freeholder answers "yes" and "no" respectively, then no forced garage.

Out of interest do all of the lessees have rights to use the garden?

What exactly is your solicitor doing about this?

What is your preferred outcome?

[lawstudent]

Amending the lease and plan is the ultimate solution and perhaps the most costly. This would involve the freeholder and current lessee agreeing to these changes and hiring a solicitor to carry out the work.

Perhaps a simpler solution would be for your solicitor to write to the freeholder and ask:

do you acknowledge that despite the terms of the lease referring to a garage, there is no existing garage on the land at the time of this purchase?
do you intend to make future lessees reinstate a garage on the land?
If the freeholder answers "yes" and "no" respectively, then no forced garage.

Not so, poppy. It wouldn't be costly to agree an amendment to the lease and it need not involve a solicitor. And the fact that the current freeholder is not intending to enforce something in the lease would not bind his successors.

[investor68]

Thanks Poppy and Lawstudent for your helpful replies.

I suppose my preferred outcome would be some amendment to the lease that acknowledges that the garage no longer exists and that I can't be forced to rebuild it.

I'm most worried about (a) extra cost of having to rebuild a garage and (b) having problems over this when I come to sell.

As to my solicitor he hasn't done anything yet, I spotted this myself. Solr has been really, really slow so I'm trying to "get ahead" myself at the mo...

Lawstudent, pls could you give me a little more help on the form of the amendment or the way it would be dealt with? Would it involve having to draw up a whole new lease or can one just refer to an amendment contained in a separate document? Would this then have to be registered at the Land Registry and would there be extra costs for dealing with all of this? I'm just thinking that if there are going to be extra costs then perhaps I might ask for a contribution from the seller?

I also wondered whether it would be possible, instead of amending the lease, to take out some form of indemnity that would give financial protection for the cost of having to reinstate the garage, if the landlord should insist on this in the future - rather than going to the trouble of amending the lease now as I'm worried this would slow the purchase down?

This is a maisonette, by the way and no, the garden belongs exclusively to the maisonette I am buying.

Many thanks again.