Leasehold garage - split from flat without Freeholder knowing - now disused but how do I get it back?
Stav
Ok... this may be a tricky one but here goes...
I bought my flat on leasehold about 4 years ago. I bought it under the
impression that it did not have a garage out back (with a group of
others). Upon looking at the lease, it clearly said to me that I had a
garage. I contacted the Freeholder and they said I do have a garage
and the original solicitors should have sorted it out.
To cut it short, what it looks like is the owner of the flat 9 years
ago split the title of the garage from the flat; according to a
solicitor the lease did not prevent this from happening. It appears
that the owner then went ahead and sold the title to the flat, but not
the title to the garage.
As it stands today, I own the leasehold to the flat, but the previous
owner (2 owners ago) seems to own the leasehold to the garage (much to
the Freeholders surprise).
The owner of the garage leasehold still has my flat as the address of
the owner on the land registry title for the garage.
After agreeing with the Freeholder not to pay the ground rent in full
due to not owning the Garage anymore the Freeholder has decided, after
trying to contact the owner of the garage, that I can change the locks
and use the garage.
This is great, but having gained access it looks like there is a load
of builders tools etc in there. I am now left with the dilemma that
the Freeholder has said I can use the garage but legally I don't lease
it - therefore I am a little reluctant to use it and throw away all
this stuff in there - what if he turns up a couple of months down the
line and wants the items?
I have left a letter in the garage for the past 3 months asking the
owner to get in contact - the letter has not been touched - I'm
relatively sure the garage is not used.
Ideally I could do with getting the garage back under my flats lease;
especially if I am going to throw all the previous owners stuff away.
Anybody have any advise on what my next steps should be?
Many thanks.
Ste
I'm confused about why you seem to think that you're entitled to this
garage. If a solicitor has told you that the garage does not belong to
you, and has been legitimately separated from the lease that you
purchased, then what on earth makes you think that you had the right
to break into it?
As to your question of what happens if you throw away the stuff and
the leaseholder turns up, the answer is that you'll be paying for the
contents of the garage, on top of paying for the broken locks.
I'm not sure whether the lease may eventually be forfeit if ground
rent is no longer paid in respect of it, but the lease will be forfeit
to the freeholder, not you, and of course the freeholder will then
probably want to charge you a premium for the garage.
The bottom line simply is that if a solicitor has told you that you do
not have any title to the garage under your lease, then quite simply
the garage is not yours, and never will be, unless:
1) you purchase the lease to the garage from the leaseholder, or
2) purchase a lease from the freeholder when possession reverts back
to him.
peterwn
3) 12 years adverse possession. A new lock is a good start.
Ste
Lol. I actually did include that as number 3 at first, but I'm not
sure whether you can acquire a lease by adverse possession, and
obviously the freeholder would object to adverse possession of the
freehold. In any event, it would still mean that the OP has to
shoulder the risk of the leaseholder turning up before 12 years are
up, in which case he would be paying a fair bit of compensation.
What is more, the OP may be liable for criminal charges if the
leaseholder turns up too soon (i.e. before the limitation period on
burglary or criminal damage).
steve robinson
You dont own the lease to the garage , you enter at your own peril
GB
>
> What is more, the OP may be liable for criminal charges if the
> leaseholder turns up too soon (i.e. before the limitation period on
> burglary or criminal damage).
Let's get this straight. The OP has broken into someone else's garage. That
is a criminal offence. If he now disposes of the contents, that is a further
offence assuming it has some value.
The freeholder has no right to authorise the OP. Indeed, their
correspondence/calls with the OP probably amount to conspiracy.
There is no limitation on crimes.
I am surprised that you might be able to gain an adverse possessory title
after 12 years if you originally broke in...
--
Take it easy on the kid, SilverFox316; everybody kills Hitler on their
first trip.
steve robinson
The garage is bieng used to store tools so adverse possesion wouldnt
apply , if the tools go missing and the locks are changed breaking
and entering possibly theft will apply
Ste
> Ste wrote:
>
> > What is more, the OP may be liable for criminal charges if the
> > leaseholder turns up too soon (i.e. before the limitation period on
> > burglary or criminal damage).
>
> Let's get this straight. The OP has broken into someone else's garage. That
> is a criminal offence. If he now disposes of the contents, that is a further
> offence assuming it has some value.
>
> The freeholder has no right to authorise the OP. Indeed, their
> correspondence/calls with the OP probably amount to conspiracy.
Well I think so far he would get away with saying he acted in good
faith in breaking in, being unable to contact the leaseholder and not
knowing whether the garage had been abandoned. But I think a court
would be more circumspect in finding that he acted in good faith if he
threw away all the contents, once he found that the garage was clearly
still in use for storage.
> There is no limitation on crimes.
Of course there is. I think burglarly and criminal damage are both 3
years.
> I am surprised that you might be able to gain an adverse possessory title
> after 12 years if you originally broke in...
You're joking aren't you. The whole point of *adverse possession* is
that you have possession other than with the permission of the
landowner, and are treating his property as your own
peterwn
I have noted the various comments with interest.
Firstly there is ground rent. This means that the freeholder is a
property investor who expects to receive income in the form of ground
rents. The freeholder presumably needs to copordinate various
activities probably via a management agency unless the leaseholders
are collectively expected to manage these matters.
Secondly, the freeholder presumably needs to give consent for any
subdivision of leasehold interests (as has happened here). Such
consent cannot probably be reasonably withheld, but it would seem
quite reasonable to decline consent to subdivision of a garage such
that the leasehold owner was not also a owner of a dwelling in the
complex.
Thirdly, the implications and effects of registration of the
subdivided lease. I am used to a Torrens registration system, so I am
unfamiliar with the half baked system used in England. It may be that
the separate registration of the garage means little especially if the
freeholder's signature is not on the document giving rise to
registration. I admit I am out of my death here, I might look up
Megarry and Wade (I think this is right) at the local university if I
have time. It has occurred to me that the OP may be a sub-freeholder
with respect to the garage.
Fourthly, the payment of ground rent seems confusing. The OP has
being paying ground rent to the freeholder which includes the garage.
Perhaps the original scheme was that the garage leasee paid ground
rent (even if a peppercorn - must be at least that as 'consideration'
would be needed) to the leasee of the associated dwelling. On this
basis the garage sub-leassee is in default or can easily be put in
default by demanding the payment of the peppercorn rent.
Fiftly, the OP may have lawfully effected a peaceful re-entry, or
possibly may have 'jumped the gun' with this (if the garage leasee is
untraceable it probably does not matter). Assuming the OP is the sub-
freeholder of the garage, it seems he has almost gained possession of
the garage. This means that the OP needs to keep paying the full
ground rent to the freeholder. It is possible the freeholder is
'setting things up' to obtain possession of the garage himself (he
sounds a bit too cooperative).
IMO the OP should write to the last known addeess of the garage
leassee by recorded delivery demanding payment of the backrent and
indicating the OP will take possession if not paid. It would not
matter if it is 'returned to sender' in fact all the better. An ad
should also be placed in the local paper asking the occupier of the
garage to contact you.
You will probably need gidance from a solicitor to check the actual
situation and to 'undo' the sub leasing of the garage.
steve robinson
The point is the garage is still in use by the original owner ,
leaseholder he has kit stored there , the building is not abandoned
or not used
Ste
> On Nov 24, 12:20 pm, Stav <scliassi...@googlemail.com> wrote:
>
> I have noted the various comments with interest.
>
> Firstly there is ground rent. This means that the freeholder is a
> property investor who expects to receive income in the form of ground
> rents. The freeholder presumably needs to copordinate various
> activities probably via a management agency unless the leaseholders
> are collectively expected to manage these matters.
I'm afraid I didn't read it like that at all. Most leases involve
merely a peppercorn ground rent (as you point out below), and I read
nothing in the OP's post to suggest otherwise.
> Secondly, the freeholder presumably needs to give consent for any
> subdivision of leasehold interests (as has happened here). Such
> consent cannot probably be reasonably withheld, but it would seem
> quite reasonable to decline consent to subdivision of a garage such
> that the leasehold owner was not also a owner of a dwelling in the
> complex.
I don't see why the freeholder has any interest at all in how the
assets are subsequently subleased.
> Thirdly, the implications and effects of registration of the
> subdivided lease. I am used to a Torrens registration system, so I am
> unfamiliar with the half baked system used in England. It may be that
> the separate registration of the garage means little especially if the
> freeholder's signature is not on the document giving rise to
> registration. I admit I am out of my death here, I might look up
> Megarry and Wade (I think this is right) at the local university if I
> have time. It has occurred to me that the OP may be a sub-freeholder
> with respect to the garage.
A sub-freeholder with respect to the garage? Do you possibly mean a
sub-leaseholder with respect to the flat?
> Fourthly, the payment of ground rent seems confusing. The OP has
> being paying ground rent to the freeholder which includes the garage.
> Perhaps the original scheme was that the garage leasee paid ground
> rent (even if a peppercorn - must be at least that as 'consideration'
> would be needed) to the leasee of the associated dwelling. On this
> basis the garage sub-leassee is in default or can easily be put in
> default by demanding the payment of the peppercorn rent.
On the contrary. If the OP is in possession of some sort of sub-lease,
then it's quite possible that the ground rent he pays is consideration
to the original leaseholder, who in turn pays ground rent in
consideration of the whole title (in effect, the flat sub-leaseholder
is subsidising the ground rent for the garage). Of course, for ease,
the payment is made directly from the sub-leaseholder to the
freeholder.
> Fiftly, the OP may have lawfully effected a peaceful re-entry, or
> possibly may have 'jumped the gun' with this (if the garage leasee is
> untraceable it probably does not matter). Assuming the OP is the sub-
> freeholder of the garage, it seems he has almost gained possession of
> the garage. This means that the OP needs to keep paying the full
> ground rent to the freeholder. It is possible the freeholder is
> 'setting things up' to obtain possession of the garage himself (he
> sounds a bit too cooperative).
>
> IMO the OP should write to the last known addeess of the garage
> leassee by recorded delivery demanding payment of the backrent and
> indicating the OP will take possession if not paid.
As the OP said, the last known address is his own address.
> It would not
> matter if it is 'returned to sender' in fact all the better. An ad
> should also be placed in the local paper asking the occupier of the
> garage to contact you.
>
> You will probably need gidance from a solicitor to check the actual
> situation and to 'undo' the sub leasing of the garage.
Surely it is the flat (if anything) that would be sub-leased, not the
garage?
Ste
wrote:
Which is neither here nor there as regards a claim of adverse
possession.
steve robinson
Of course it is, adverse possession is the take over and use of a
building or piece of land which is not being used by the owner or
has been abandoned without the owners permission or often knowledge .
Its not breaking into a locked , secured building full of equipment
Ste
On the contrary Steve. Certainly under the old AP rules, if he'd made
it to 12 years, then the building, the land, and indeed the equipment
therein, would all have been his to do as he liked. Of course, in the
meantime he is liable to the garage leaseholder for damages, and may
also be liable for various criminal offences. But, if he reached the
12 years without detection, he would be home free.
steve robinson
Isnt the whole act supposed to be peaceable , just like squatters
they can enter a building but must not force entry
Ste
Not as far as I know, and I've just flicked through a small book I
have on Land Law (not comprehensive, but appears to cover all the main
areas) and there's nothing in there either suggesting a requirement
for peaceable entry. The only time the clock doesn't start at the same
time as the disseisin is where there is "concealment or fraud".
As I say, there is no doubt that the OP may commit criminal offences
like burglary and criminal damage, but like adverse possession, the
clock starts ticking and unless action is taken in a timely manner,
then he gets away scot free.
Stav
common sense to a degree - that I need to take a step back before I
myself get into any legal issues IF the garage leasehold turns up.
I think in summary a trip to the solicitors is required. I need them
to look over the lease as I would like this clarified:
"ALL THAT piece or parcel of land shown for the purposes of
identification only coloured pink-hatched-black on the said plan
together with the garage erected thereon which said piece of land flat
and garage are together hereinafter referred to as "the demised
premises" and TOGETHER WITH the easements rights and privileges
mentioned in the Second Schedule hereto subject as therein mentioned
EXCEPT AND RESERVING as mentioned int he Third Habendum Schedule
hereto TO HOLD the demised premises (together with and except and
reserved as aforesaid) unto the lessee from..."
To me that says that the flat and the garage should remain together? I
did later ask the solicitors that did the conveyancing for me to
confirm this and they said there is nothing to restrict the splitting
of the garage from the flat; I wonder if they would say this though as
else they advised me incorrectly in the first instance while doing the
conveyancing (when I also asked directly).
The freeholder sent me the above quoted paragraph when I first
enquired about the splitting of the garage with them - but then they
later changed their tune when my solicitors said it can be split.
All in all I'm a bit lost with this but don't want to spend too much
investigating a garage I don't own.
Ste
I think the bottom line is that it's going to cost you money one way
or the other for the services of a solicitor. There is certainly
nothing in theory that prevents the garage being held by another
party, and any written documents you may have may well simply be
incorrect, or incomplete.
On the other hand, it probably is worth punting a few hundred pounds
for a second legal opinion, and also getting ahold of the terms of the
garage lease - depending on how things were arranged, it's possible
that you could exploit the terms of the lease to have possession of
the garage revert back to you (for failure to pay ground rent, for
example, or because the garage lease suffers from a total failure of
consideration - or perhaps it could even be your lucky day, and there
is no lease at all).
But for sure, simply breaking into the garage and ejecting the
contents will potentially get you criminal convictions, and will
certainly cost you money if the garage leasor turns up.
GB
>
> I think the bottom line is that it's going to cost you money one way
> or the other for the services of a solicitor. There is certainly
> nothing in theory that prevents the garage being held by another
> party, and any written documents you may have may well simply be
> incorrect, or incomplete.
When we sold my mother's flat, we held on to the parking space. The original
lease of the flat was in pretty much the same terms as Stav mentioned, and
we simply separated it when we sold. I think that Stav is almost certainly
just wasting his money if he perseveres.
There is no reason to believe that the solicitors who separated his flat's
former garage made a mistake, and if ground rent is not paid on it the
garage it will revert to the freeholders not him. Stav is actually lucky
that the freeholders are not holding him liable for the ground rent on the
garage.
peterwn
If the OP would be liable for the ground rent pertaining to the
garage, then surely the garage would 'revert' to the OP on abandonment
or default of the sub-lease (which it what it appears to be).
There are two points which the OP could answer:
1. Does the head lease contain any requirement that the freeholder's
consent be obtained to 'subdivide' a lease.
2. What does the document do which split the lease? In particular did
it split off the garage for a lump sum with nil future rental or did
it require a portion of the ground rental to be paid.
My present summation is - the garage leaseholder is most probably in
default by not paying rent, is untraceable and the OP has taken
peaceful possession of the garage. Probably no more needs to be done
until the OP sells up at which time cancellation of the registration
of the sub-lease would be needed.
I do not say I am completely right. I am just trying to surmise the
position based on the information provided by the OP.
steve robinson
If his lease states he has the use of a garage the freeholders are
lucky that the op is not enforceing this and insisting they supply
him with one
Its not an excuse that the lease wasnt corrected
steve robinson
Forceing entry to the garage is not peaceable possession its breaking
and entering or burglary
Percy Picacity
news:xn0gi305...@news.virginmedia.com:
Surely it is the responsibility of the previous leaseholder who sold
the lease to the OP to provide a garage?
--
Percy Picacity
GB
>>
>> If his lease states he has the use of a garage the freeholders are
>> lucky that the op is not enforceing this and insisting they supply
>> him with one
>>
>> Its not an excuse that the lease wasnt corrected
>
> Surely it is the responsibility of the previous leaseholder who sold
> the lease to the OP to provide a garage?
With due respect, this is all rather misleading. Assuming that the original
lease allowed the garage and the flat to be sub-let, that's fine. The OP
here has the sub-lease for the flat. Somebody else has the sub-lease for the
garage. I'd imagine that the sub-leases detail who is responsible for the
ground rent and service charges.
There would in principle be no need to notify the freeholder, but in any
case that may have been done. The fact that the administrators don't know
about it does not mean it didn't happen.
Percy Picacity
news:4b0edccf$0$2521$da0f...@news.zen.co.uk:
But the OP says that his lease document includes a garage in the
property. So if this is a sublease the leaseholder who sold the
flat to the OP has either misled him or failed to supply what he
contracted to do. From the OP, this may be because the previous
leaseholder misled the vendor.
Another question seeing you know something about the subject: if
the OP had been granted a sublease, properly described, while being
led to believe he held a lease from the original freeholder would
this be misleading or are the two things equivalent (i.e. is he in
the same position as if the freeholder had granted him a lease on
just the flat, without the interposition of another leaseholder)?
And another question: if the leaseholder sold the lease to the
whole property but had already sublet the garage to someone else,
what factors decide which lease is valid - is it the first one or
does it depend precisely how they were drafted?
--
Percy Picacity
Ste
> "GB" <NOTsome...@microsoft.com> wrote innews:4b0edccf$0$2521$da0f...@news.zen.co.uk:
A sublease will surely bind the title, not the person. If a person
subleases off a parcel of land, and then sells the whole "parent-
lease" to a third party, the owner of the sub-lease still has
possession, and the owner of the parent-lease remains bound by the sub-
lease. And there is no question here that the OP, or the owners before
him, understood that they were entitled to anything but the house, so
there can be no question of the vendor being involved in deceit.
peterwn
But not if a lessee is in default such that the lessor is entitled to
take back possession. I say 'peaceable entry' as it does not involve
dealing face to face with anyone actually occupying and present on the
premises in which a court order would need to be obtained.
peterwn
>
> lucky that the op is not enforceing this and insisting they supply
> him with one
>
> Its not an excuse that the lease wasnt corrected
No. As far as I can see what the OP actually purchased was the head
lease (as lessee) of a flat and associate garage subject to a sub-
lease with respect to the garage (as lessor). Presumably the
purchaser was aware of this at the time because a search of the
register would have revealed the registration of the sublease.
Therefore the purchaser knew he was not getting a garage. Therefore
the freeholder has stuck to his side of the bargain, but if the
leaseholder vendor chooses to carve the garage off, this is not the
freeholder's problem.
If in such a case the sublessee defaults on the sublease, then the
garage 'reverts' to the lessee (ie the OP) of the head lease (this
being the sub-lessor's 'reversionary interest').
Usenet Nutter
wrote:
Don't you Southerners wish you had the Scottish system of buying
property?
Percy Picacity
news:bcda485a-9e43-4b99-9128-f48d0bc3fc76
@c34g2000yqn.googlegroups.co
m:
> On 26 Nov, 22:05, Percy Picacity <k...@under.the.invalid> wrote:
>> "GB" <NOTsome...@microsoft.com> wrote
>> innews:4b0edccf$0$2521$da0feed9@new
So the contract is for what the parties understood it to be for, not
what is written down?
--
Percy Picacity
Percy Picacity
bfdd-38e...@g1g2000pra.googlegroups.com:
How can the OP find out if he is the sub-lessor or merely another
sub-lessee of part of the original lease? Especially if he has no
sublease documents for either part of the original property.
--
Percy Picacity
peterwn
>
> Don't you Southerners wish you had the Scottish system of buying
> property?
Agreed! the system I am used to in New Zealand is similar AFAIK to the
Scottish system.
Moreover Australia and NZ uses the Torrens system for registering land
titles. This originated in South Australia in the mid 1800's to
simplify transfers of land between settlers (the traditional 'title
deed' system would have been hopeless). What you see on the title is
what you get - your title is generally indefeasible (unless you were a
party to some fraud).
I suspect the fundamental Torrens principles are not suited to a
pyramid of leases and sub leases which is probably why England did not
adopt Torrens but seemed to have adopted a registration which is not
as rigourous as Torrens but capable of handling the complex pyramid
lease situations. Also 'down under' leasehold land is not nearly as
common as in England with most home owners owning their land in 'fee
simple' being the highest possible level of 'Crown grant' (Canberra
being the major exception).
Stav
Thanks again for all your insightful comments. To confirm I did
purchase the flat not believing I had a garage BUT as stated above I
must have the head lease (leasing directly from the freeholder) and
nobody (myself/previous owner/freeholder) appears to know anything
about a lease regarding the garage or indeed any details pertaining to
that. Absolutely nothing pertaining to the garage was brought to my
attention during the purchase of the property either to say I had or
did not have the garage. IF I were the lessor surely someone should
have given me the this? Could somebody partition the flat and garage
and have no sub lease?
Is it possible the sublease allowed for no portion of the ground rent
or maintenance? I assume the term of the sublease could be anything up
to the term of the head lease?
As to how to resolve this one way or another what would people
suggest? I believe I can get a copy of the sub lease of the garage (if
there is one) from the land registry?
peterwn
> On 24 Nov, 19:55, peterwn <pete...@paradise.net.nz> wrote:
>
> > On Nov 24, 12:20 pm, Stav <scliassi...@googlemail.com> wrote:
>
> > I have noted the various comments with interest.
>
> > Firstly there is ground rent. This means that the freeholder is a
> > property investor who expects to receive income in the form of ground
> > rents. The freeholder presumably needs to copordinate various
> > activities probably via a management agency unless the leaseholders
> > are collectively expected to manage these matters.
>
> I'm afraid I didn't read it like that at all. Most leases involve
> merely a peppercorn ground rent (as you point out below), and I read
> nothing in the OP's post to suggest otherwise.
Ground rents are generally about 6% of land value at the time the
lease was entered into. Therefore for old leases the rental is in
effect a peppercorn but still needs to be paid. I accept that there
are some leases which were purchased for a lump sum and an annual
peppercorn rental payable on demand. I would argue that the lessor is
entitled to demand payment and if he cannot contact the lessee the
lessee has defaulted on the lease. In any case the maintenance, rates,
insurance outgoings would be apportioned and if the garage lessee does
not pay these items he would be in default of the lease.
>
> > Secondly, the freeholder presumably needs to give consent for any
> > subdivision of leasehold interests (as has happened here). Such
> > consent cannot probably be reasonably withheld, but it would seem
> > quite reasonable to decline consent to subdivision of a garage such
> > that the leasehold owner was not also a owner of a dwelling in the
> > complex.
>
> I don't see why the freeholder has any interest at all in how the
> assets are subsequently subleased.
This is a right that a freeholder is quite capable of 'reserving' by
saying so in the head lease. This would turn on the head lease
wording.
>
> > Thirdly, the implications and effects of registration of the
> > subdivided lease. I am used to a Torrens registration system, so I am
> > unfamiliar with the half baked system used in England. It may be that
> > the separate registration of the garage means little especially if the
> > freeholder's signature is not on the document giving rise to
> > registration. I admit I am out of my death here, I might look up
> > Megarry and Wade (I think this is right) at the local university if I
> > have time. It has occurred to me that the OP may be a sub-freeholder
> > with respect to the garage.
>
> A sub-freeholder with respect to the garage? Do you possibly mean a
> sub-leaseholder with respect to the flat?
Perhaps my terminology is unfortunate. With respect to the garage the
OP as far as I can ascertain is both a lessee (of demised premises
consisting of flat and garage) and a lessor (of demised premises
consisting of the garage only).
>
> > Fourthly, the payment of ground rent seems confusing. The OP has
> > being paying ground rent to the freeholder which includes the garage.
> > Perhaps the original scheme was that the garage leasee paid ground
> > rent (even if a peppercorn - must be at least that as 'consideration'
> > would be needed) to the leasee of the associated dwelling. On this
> > basis the garage sub-leassee is in default or can easily be put in
> > default by demanding the payment of the peppercorn rent.
>
> On the contrary. If the OP is in possession of some sort of sub-lease,
> then it's quite possible that the ground rent he pays is consideration
> to the original leaseholder, who in turn pays ground rent in
> consideration of the whole title (in effect, the flat sub-leaseholder
> is subsidising the ground rent for the garage). Of course, for ease,
> the payment is made directly from the sub-leaseholder to the
> freeholder.
But if the rent of the garage is not forthcoming, then the lease
holder of the flat plus garage is still liable for the rent.
>
> > Fiftly, the OP may have lawfully effected a peaceful re-entry, or
> > possibly may have 'jumped the gun' with this (if the garage leasee is
> > untraceable it probably does not matter). Assuming the OP is the sub-
> > freeholder of the garage, it seems he has almost gained possession of
> > the garage. This means that the OP needs to keep paying the full
> > ground rent to the freeholder. It is possible the freeholder is
> > 'setting things up' to obtain possession of the garage himself (he
> > sounds a bit too cooperative).
>
> > IMO the OP should write to the last known addeess of the garage
> > leassee by recorded delivery demanding payment of the backrent and
> > indicating the OP will take possession if not paid.
>
> As the OP said, the last known address is his own address.
The freeholder or the freholder's agent may have a forwarding address
which may or may not work. Otherwise agreed that addressing it to your
own address is an exercise of futility.
>
> > It would not
> > matter if it is 'returned to sender' in fact all the better. An ad
> > should also be placed in the local paper asking the occupier of the
> > garage to contact you.
>
> > You will probably need gidance from a solicitor to check the actual
> > situation and to 'undo' the sub leasing of the garage.
>
> Surely it is the flat (if anything) that would be sub-leased, not the
> garage?
Theoretically possible but doubtful. The flat would be more saleable
or mortgagable if the garage was subleased off. Another arrangement
would be a cross lease. In this case the owners of the flat and garage
jointly own the interest in the main lease, and the joint owners then
lease the flat and garage to each owner respectively. In this scenario
if the garage owner stopped paying rent / maintenance, etc the flat
owner would need to pay to stop the head lease defaulting. I suspect
that if the default continues the flat owner would need to go to court
to get an order to sell the garage with net proceeds treated as
'unclaimed monies'.
IMO a freeholder should make it a lease requirement that garages are
not leased out or rented out except perhaps to other residents of the
estate.
GB
>>
> So the contract is for what the parties understood it to be for, not
> what is written down?
The OP bought the main lease but subject to the terms of the sub-lease on
the garage - that's my guess. I would also assume that the OP is responsible
to the freeholder for all service charges and ground rent, and he can
collect from the garage owner whatever share of that (if any) plus any rent
(if any) that the sub-lease specifies.
If the OP is really, really lucky, the garage owner may be in default
somewhere, in which case the OP may in fact be able to terminate the
sub-lease on the garage.
It strikes me that the freeholder's administrators are as confused about all
this as the OP. I don't see any reason for them, for example, to be giving
him a rebate on the service charges or ground rent.
This is all my surmise, without seeing any documents. If the OP wants to
know where he stands, he should perhaps show the documents (ie the details
on the LR) to a solicitor.
GB
>
> How can the OP find out if he is the sub-lessor or merely another
> sub-lessee of part of the original lease? Especially if he has no
> sublease documents for either part of the original property.
He'll need to search the Land Registry. There should be a separate entry for
the garage, and his own entry probably cross-refers to the sub-lease. I am
sure that his solicitor did all this when he bought the flat.
Ian
> > leaseholder turns up too soon (i.e. before the limitation period on
> > burglary or criminal damage).
>
> Let's get this straight. The OP has broken into someone else's garage.
Doesn't the freeholder own the garage?
Ian
steve robinson
Yes but its leased to a.n. other
Ste
Yes, but he doesn't have a right of possession - which is what
actually counts in law. Otherwise you're saying that a landlord could
never possibly be guilty of burgling his tenant's house, because he
"owns" the property.
Ste
> Ste <ste_ro...@hotmail.com> wrote in
A title deed is not a contract. It is merely supposed to reflect the
reality of the arrangements, and often for whatever reason the title
deed will not reflect the present reality.
Ste
As we've said Stav, this is one for a solicitor. We don't have your
documents to hand, we can't undertake research on your behalf, and I
don't think anyone here is actually expert in land law (which is a
notoriously complex area of law, even though we here will be able to
give you a good outline).
The sub-lease may be lodged with the land registry, or it may not. The
sub-leasor may have the sub-lease title to hand, or he may not. The
sub-lease may specify ground rent, but it may be a trifling amount -
and I don't know how often it needs to be paid, or whether it can be
paid in advance, whether it needs to be demanded, etc. Without knowing
any of these facts, it is obviously impossible to give any meaningful
advice.
As has been said, adverse possession would help you after 12 years
(and it is designed specifically to avoid parcels of land falling
outside of the law, because no owner can be traced), but you take a
chance, and the fact that the garage is being used for storage means
you shoulder the risk of the leaseholder turning up, and everything
about his lease may well be in order.
Ste
>
> > I'm afraid I didn't read it like that at all. Most leases involve
> > merely a peppercorn ground rent (as you point out below), and I read
> > nothing in the OP's post to suggest otherwise.
>
> Ground rents are generally about 6% of land value at the time the
> lease was entered into. Therefore for old leases the rental is in
> effect a peppercorn but still needs to be paid. I accept that there
> are some leases which were purchased for a lump sum and an annual
> peppercorn rental payable on demand.
These latter leases are the only type of leases that I've ever seen in
practice. I personally haven't owned a leasehold, but I have family
involved in property who hold a number of long-term leaseholds, and
the rent is generally in the order of £10 per annum.
> I would argue that the lessor is
> entitled to demand payment and if he cannot contact the lessee the
> lessee has defaulted on the lease.
I agree, but without knowing what the rate of rent is, and without
knowing how often it is due, he still takes a chance that the
leaseholder will turn up with his paperwork in order. What is more, he
will definitely have to make reasonable enquiries to trace the
whereabouts of the leaseholder before disposing of the goods inside
the garage (I'm personally not sure whether he has to make reasonable
enquiries as to the ground rent, or whether he can just serve a notice
at the last-known address, which is his own address).
> In any case the maintenance, rates,
> insurance outgoings would be apportioned and if the garage lessee does
> not pay these items he would be in default of the lease.
Not necessarily. There is no rule that says a sub-leasor must pay his
share of the head-lease expenses. It all depends on the lease itself,
and since the owner of the head-lease has sub-leased to himself and
then sold the head-lease, then it follows that he'll have given
himself especially beneficial terms.
> > > Secondly, the freeholder presumably needs to give consent for any
> > > subdivision of leasehold interests (as has happened here). Such
> > > consent cannot probably be reasonably withheld, but it would seem
> > > quite reasonable to decline consent to subdivision of a garage such
> > > that the leasehold owner was not also a owner of a dwelling in the
> > > complex.
>
> > I don't see why the freeholder has any interest at all in how the
> > assets are subsequently subleased.
>
> This is a right that a freeholder is quite capable of 'reserving' by
> saying so in the head lease. This would turn on the head lease
> wording.
Agreed, though as you say (or someone else said), permission cannot be
withheld unreasonably.
> > > Thirdly, the implications and effects of registration of the
> > > subdivided lease. I am used to a Torrens registration system, so I am
> > > unfamiliar with the half baked system used in England. It may be that
> > > the separate registration of the garage means little especially if the
> > > freeholder's signature is not on the document giving rise to
> > > registration. I admit I am out of my death here, I might look up
> > > Megarry and Wade (I think this is right) at the local university if I
> > > have time. It has occurred to me that the OP may be a sub-freeholder
> > > with respect to the garage.
>
> > A sub-freeholder with respect to the garage? Do you possibly mean a
> > sub-leaseholder with respect to the flat?
>
> Perhaps my terminology is unfortunate. With respect to the garage the
> OP as far as I can ascertain is both a lessee (of demised premises
> consisting of flat and garage) and a lessor (of demised premises
> consisting of the garage only).
I understand. Incidentally, I've just checked the dictionary, and I
was previously using "leasor" to be synonymous with tenant. God damn
land law.
> > > Fourthly, the payment of ground rent seems confusing. The OP has
> > > being paying ground rent to the freeholder which includes the garage.
> > > Perhaps the original scheme was that the garage leasee paid ground
> > > rent (even if a peppercorn - must be at least that as 'consideration'
> > > would be needed) to the leasee of the associated dwelling. On this
> > > basis the garage sub-leassee is in default or can easily be put in
> > > default by demanding the payment of the peppercorn rent.
>
> > On the contrary. If the OP is in possession of some sort of sub-lease,
> > then it's quite possible that the ground rent he pays is consideration
> > to the original leaseholder, who in turn pays ground rent in
> > consideration of the whole title (in effect, the flat sub-leaseholder
> > is subsidising the ground rent for the garage). Of course, for ease,
> > the payment is made directly from the sub-leaseholder to the
> > freeholder.
>
> But if the rent of the garage is not forthcoming, then the lease
> holder of the flat plus garage is still liable for the rent.
Agreed. Incidentally I think my previous reply above can be dismissed
- I think it's clear that we're most likely dealing with the situation
as you describe, where Stav holds the head-lease, and the garage is
sub-leased. And as you say, in that situation Stav cannot agrue for a
reduction in his own ground rent (and by doing so nevertheless, the
freeholder has been exceedingly generous and obviously isn't too
interested in the matter).
Stav
All - thanks for your comments on this matter. It is a lot more clear
to me what the situation maybe. I have begun to instruct my solicitor
to look into this although I think I will go to the land registry
first and see if they have a copy of the sub lease for me - no doubt
this is what the solicitors will do so I may as well do it myself
initially. I'll hopefully have an update for you all soon - and
fingers crossed I am not providing it behind bars for trespassing :)
Ste
>
> I'll hopefully have an update for you all soon
Yes, please let us know where this goes.
> - and
> fingers crossed I am not providing it behind bars for trespassing :)
Lol. Luckily mere trespass is not a criminal offence.
peterwn
>
> Thanks again for all your insightful comments. To confirm I did
> purchase the flat not believing I had a garage BUT as stated above I
> must have the head lease (leasing directly from the freeholder) and
> nobody (myself/previous owner/freeholder) appears to know anything
> about a lease regarding the garage or indeed any details pertaining to
> that. Absolutely nothing pertaining to the garage was brought to my
> attention during the purchase of the property either to say I had or
> did not have the garage. IF I were the lessor surely someone should
> have given me the this? Could somebody partition the flat and garage
> and have no sub lease?
the solicitor doing the conveyancing for you surely would have been
given the lessor's 'original' copy of the garage lease.
As suggested elsewhere see what sublease documents the registration
agency has which pertain to your flat and to the garage. You really
need to see these to see what is going on.
>
> Is it possible the sublease allowed for no portion of the ground rent
> or maintenance? I assume the term of the sublease could be anything up
> to the term of the head lease?
No sub lease can be beyond the term of any 'superior' lease. The sub
lease documents will indicate how rent (if any) and maintenance
charges etc) are to be paid. The freeholder has effectively confirmed
to you (as I read your earlier postings) that he receives nothing from
the garage sub-lessee which means you have been 'carrying' the
maintenance charges, etc at least with respect to the garage, and if
the garage sub lessee has not been paying you such apportioned
amounts, he is in default. I do not conceive that the garage sub-
lease would release the lessee from paying his share of maintenance,
etc.
It is possible that the sub-lease provided for a lump sum in lieu of
rent with respect to the garage so you might possibly have to pick up
the tab for the garage share of the ground rent. This would have been
reflected in the price you paid.
>
> As to how to resolve this one way or another what would people
> suggest? I believe I can get a copy of the sub lease of the garage (if
> there is one) from the land registry?
Yes, get copies of any sub leases for your flat and the garage from
the registry, failing that, see if the solicitor who did the
conveyancing for you has them. Another thought, they may be held on
behalf of your mortgage lender - the solicitor engaged should know.
peterwn
> purchase the flat not believing I had a garage BUT as stated above I
> must have the head lease (leasing directly from the freeholder) and
> nobody (myself/previous owner/freeholder) appears to know anything
> about a lease regarding the garage or indeed any details pertaining to
> that. Absolutely nothing pertaining to the garage was brought to my
> attention during the purchase of the property either to say I had or
> did not have the garage. IF I were the lessor surely someone should
> have given me the this? Could somebody partition the flat and garage
> and have no sub lease?
>
> Is it possible the sublease allowed for no portion of the ground rent
> or maintenance? I assume the term of the sublease could be anything up
> to the term of the head lease?
>
> As to how to resolve this one way or another what would people
> suggest? I believe I can get a copy of the sub lease of the garage (if
> there is one) from the land registry?
I did a lengthy reply but it seemed to have got lost.
The best thing you can do is to track down any sub-leases pertaining
to your flat and the garage. Trying the land registry would be the
first (and probably cheapest) step.
If this fails ask the solicitor who you engaged to conveyance the flat
to you. He might have them or may indicate who might have them (eg the
lender of your flat mortgage).
peterwn
> The sub-lease may be lodged with the land registry, or it may not. The
> sub-leasor may have the sub-lease title to hand, or he may not. The
> sub-lease may specify ground rent, but it may be a trifling amount -
> and I don't know how often it needs to be paid, or whether it can be
> paid in advance, whether it needs to be demanded, etc. Without knowing
> any of these facts, it is obviously impossible to give any meaningful
> advice.
>
> As has been said, adverse possession would help you after 12 years
> (and it is designed specifically to avoid parcels of land falling
> outside of the law, because no owner can be traced), but you take a
> chance, and the fact that the garage is being used for storage means
> you shoulder the risk of the leaseholder turning up, and everything
> about his lease may well be in order.
Stav has done bloody well so far and IMO very likely has the garage
almost 'in the bag'. He rightfully wants to be pretty sure before
hiring a lawyer to do the ;coup de grace.'
As a fallback he should aim for 'adverse possession'. The new lock is
a good start. He should keep a diary of activities, the sale docket
for the lock could be helpful. If he sells in the 12 year period he
can 'transfer' the 'right' of adverse possession to the buyer, who can
'consumate it' by putting a fresh lock on the garage (see
Bukinghamshire Council v Moran [1990] Ch 623 where a new padlock and
chain on a gate worked wonders). So if Stav sells up in say 8 years
time, the new owner has only 4 more years to wait.
Ste
> On Nov 28, 7:30 am, Ste <ste_ro...@hotmail.com> wrote:
>
> > The sub-lease may be lodged with the land registry, or it may not. The
> > sub-leasor may have the sub-lease title to hand, or he may not. The
> > sub-lease may specify ground rent, but it may be a trifling amount -
> > and I don't know how often it needs to be paid, or whether it can be
> > paid in advance, whether it needs to be demanded, etc. Without knowing
> > any of these facts, it is obviously impossible to give any meaningful
> > advice.
>
> > As has been said, adverse possession would help you after 12 years
> > (and it is designed specifically to avoid parcels of land falling
> > outside of the law, because no owner can be traced), but you take a
> > chance, and the fact that the garage is being used for storage means
> > you shoulder the risk of the leaseholder turning up, and everything
> > about his lease may well be in order.
>
> Stav has done bloody well so far and IMO very likely has the garage
> almost 'in the bag'. He rightfully wants to be pretty sure before
> hiring a lawyer to do the ;coup de grace.'
Actually he seems to have done very little, except break into a
garage.
> As a fallback he should aim for 'adverse possession'. The new lock is
> a good start. He should keep a diary of activities, the sale docket
> for the lock could be helpful. If he sells in the 12 year period he
> can 'transfer' the 'right' of adverse possession to the buyer, who can
> 'consumate it' by putting a fresh lock on the garage (see
> Bukinghamshire Council v Moran [1990] Ch 623 where a new padlock and
> chain on a gate worked wonders). So if Stav sells up in say 8 years
> time, the new owner has only 4 more years to wait.
Yes, but Peter you should realise that you're potentially advising
Stav to commit a criminal offence. What he intends to do amounts to
little more than stealing the garage. If he is able to keep adverse
possession of the garage for 12 years, then he probably deserves it,
but if the owner turns up before then there could be some very serious
consequences indeed. At the very least, if he intends to go down the
adverse possession route, then he should first take all practical
steps to trace the garage leaseholder as a defence to any later charge
of dishonesty - and I would expect that to include a nationwide search
against the garage owner's name (unless perhaps the name is Jones, or
John Smith).
He should also bear in mind that with the adverse possession route, he
will be liable in conversion (until the limitation period) to the
garage leaseholder for the full value of the goods therein, which Stav
has expressed an intention to dispose of.
Remeber Peter, there are many situations where a person might be out
of the country for a number of years for example, and may wish to
store possessions for that period. It's up to Stav to try and discern
how long it has been since the garage owner last visited the garage,
but the 3 months since he broke in isn't a very long time at all.
Hell, my old man's garden shed probably goes 6 months without him
opening it up, and like anybody he'd be outraged to find that in the
meantime the neighbour had replaced the lock and thrown out the
contents!
GB
> As suggested elsewhere see what sublease documents the registration
> agency has which pertain to your flat and to the garage. You really
> need to see these to see what is going on.
In areas covered by the Land Registry, their computer record is the primary
determinant of who owns what. Any documents you have lying around are pretty
much irrelevant.
So, the OP is right to look on the LR and pay his �3 fee per title to see
the documents. He should start with his own title, which as I said probably
cross-refers to the garage, so he can find that title quite easily.
> I do not conceive that the garage sub-
> lease would release the lessee from paying his share of maintenance,
> etc.
Umm, why not, if it was drawn up by a previous vendor for his own benefit?
GB
>
> Actually he seems to have done very little, except break into a
> garage.
I don't think there's any doubt from what he has told us that he is guilty
of breaking and entering. The connection of the flat and the garage is
irrelevant in that respect, so it's exactly the same as if he broke into
your or my garage.
As has been said multiple times already, the OP should check the terms of
the lease, as it is possible the garage owner is in default and the OP may
be able to take possession of the garage (legally!).
Chris R
peterwn opined:
Everyone commenting about adverse pssession in this thread seems to be under
at least one misapprehension.
First, since the Land Registration Act 2002, it is no longer possible to
obtain title to registered land without the proprietor being notified and
given at least two years to remove the squatter, subject to three exceptions
that would not apply here.
Second, it is not possible to get a leasehold title by adverse possession.
Third, it is not possible for a tenant to get title by adverse possession
against his landlord.
Fourth, the landlord will undoubtedly object if the OP attempts to be
registered as owner of the freehold to the garage.
Chris R
peterwn
> peterwn wrote:
> > As suggested elsewhere see what sublease documents the registration
> > agency has which pertain to your flat and to the garage. You really
> > need to see these to see what is going on.
>
> In areas covered by the Land Registry, their computer record is the primary
> determinant of who owns what. Any documents you have lying around are pretty
> much irrelevant.
>
> So, the OP is right to look on the LR and pay his £3 fee per title to see
> the documents. He should start with his own title, which as I said probably
> cross-refers to the garage, so he can find that title quite easily.
Yes.
>
> > I do not conceive that the garage sub-
> > lease would release the lessee from paying his share of maintenance,
> > etc.
>
> Umm, why not, if it was drawn up by a previous vendor for his own benefit?
Agreed in principle, but hopefully, solicitors would firmly advise
purchasers NOT to accept a potentially open ended obligation of this
sort. If a long term flat lease has such a 'stapled' obligation, them
presumably any valuer would identify this and try and assess the
'present value' of such obligation (and should for safety be heavy
handed with this) and subtract it from the total valuation. Thus the
original vender would have had to accept a proportionately lower price
for the flat in exchange for a rent and maintenance free garage.
What the OP needs is ANY garage lessee default that enables the lessor
to terminate the sub lease, and the most likely ones to help the OP
are rent and maintenance payment defaults, even a peppercorn rental.
If he cannot find one, the fallback is to try for adverse possession.
peterwn
> On 28 Nov, 01:00, peterwn <pete...@paradise.net.nz> wrote:
>
>
>
> > On Nov 28, 7:30 am, Ste <ste_ro...@hotmail.com> wrote:
>
> > > The sub-lease may be lodged with the land registry, or it may not. The
> > > sub-leasor may have the sub-lease title to hand, or he may not. The
> > > sub-lease may specify ground rent, but it may be a trifling amount -
> > > and I don't know how often it needs to be paid, or whether it can be
> > > paid in advance, whether it needs to be demanded, etc. Without knowing
> > > any of these facts, it is obviously impossible to give any meaningful
> > > advice.
>
> > > As has been said, adverse possession would help you after 12 years
> > > (and it is designed specifically to avoid parcels of land falling
> > > outside of the law, because no owner can be traced), but you take a
> > > chance, and the fact that the garage is being used for storage means
> > > you shoulder the risk of the leaseholder turning up, and everything
> > > about his lease may well be in order.
>
> > Stav has done bloody well so far and IMO very likely has the garage
> > almost 'in the bag'. He rightfully wants to be pretty sure before
> > hiring a lawyer to do the ;coup de grace.'
>
> Actually he seems to have done very little, except break into a
> garage.
Remember this all started because he found he was paying rent for a
garage that was not in his possession. He then found he was lessor of
the garage and figured that there was a lease somewhere. The lessee
is very likely to be in default, but this depends on the terms of the
lease.
He has entered the garage and installed a new lock, the 'adverse
possession' clock starts ticking from thast point. He has made enquiry
about the items found within. Unless there has been recent changes to
property law, he could probably 'distrain' the items - get them sold
at auction and use the proceeds to offset any defaulted rent and
maintenance payments.
He effected 'peaceful' entry ie in a way that would not immediately
invoke a breach of the peace (the law does not like 'self help'
remedies invoked if they are likely to result in a breach of the
peace).
The OP could be accused of committing a crime. However as the OP has
some of the property rights over the garage and given the other
circumstances, any prosecutor would have his time cut out proving
'mens rea'. It would be more of a civil rather than criminal matter.
>
> > As a fallback he should aim for 'adverse possession'. The new lock is
> > a good start. He should keep a diary of activities, the sale docket
> > for the lock could be helpful. If he sells in the 12 year period he
> > can 'transfer' the 'right' of adverse possession to the buyer, who can
> > 'consumate it' by putting a fresh lock on the garage (see
> > Bukinghamshire Council v Moran [1990] Ch 623 where a new padlock and
> > chain on a gate worked wonders). So if Stav sells up in say 8 years
> > time, the new owner has only 4 more years to wait.
>
> Yes, but Peter you should realise that you're potentially advising
> Stav to commit a criminal offence. What he intends to do amounts to
> little more than stealing the garage. If he is able to keep adverse
> possession of the garage for 12 years, then he probably deserves it,
> but if the owner turns up before then there could be some very serious
> consequences indeed. At the very least, if he intends to go down the
> adverse possession route, then he should first take all practical
> steps to trace the garage leaseholder as a defence to any later charge
> of dishonesty - and I would expect that to include a nationwide search
> against the garage owner's name (unless perhaps the name is Jones, or
> John Smith).
I am not advising anything. He has already committed the act that
could be considered 'criminal'.
In this respect, he is in a no worse position than the apartment
squatters in Mayfair.
Actually the OP could trump up and document an excuse for entry, such
as the need for a maintenance inspection, this is a property right he
has over the garage.
>
> He should also bear in mind that with the adverse possession route, he
> will be liable in conversion (until the limitation period) to the
> garage leaseholder for the full value of the goods therein, which Stav
> has expressed an intention to dispose of.
That is OK. If he sold the goods at auction, he can merely pay the net
proceeds to the owner if and when demanded. Personally, I would just
store the tools out of the way if possible.
>
> Remeber Peter, there are many situations where a person might be out
> of the country for a number of years for example, and may wish to
> store possessions for that period. It's up to Stav to try and discern
> how long it has been since the garage owner last visited the garage,
> but the 3 months since he broke in isn't a very long time at all.
> Hell, my old man's garden shed probably goes 6 months without him
> opening it up, and like anybody he'd be outraged to find that in the
> meantime the neighbour had replaced the lock and thrown out the
> contents!
Agreed, there is a whale of a difference whether there are a few
incidental tools stored in the garage or whether the garage is chock
full of household possessions. In the latter case I would agree that
the OP should not dispose of them if attempting adverse possession. OP
should in this case store a few of his own items there as well for the
12 years (I indicated earlier that the OP would have had right od
entry for inspection).
The OP's intention is to determine whether there has been a lease
default warranting re-possession and then get a solicitor to arrange -
part of this would be the method of disposal of stored goods in a
lawful manner.
If the default was merely non payment of a peppercorn rental, it would
be IMO immoral to take possession on this. But it is extremely likely
in this case that the lessee is in default of substantive rent and /
or maintenance charges.
peterwn
> Ste wrote:
>
> > Actually he seems to have done very little, except break into a
> > garage.
>
> I don't think there's any doubt from what he has told us that he is guilty
> of breaking and entering. The connection of the flat and the garage is
> irrelevant in that respect, so it's exactly the same as if he broke into
> your or my garage.
No. The OP possesses some remaining property rights over the garage
and that would include the right of inspection and maintenance, which
is why he broke the lock in the first place. Hence there is enormous
doubt that he committed any crime. If he then removed and sold for
his benefit (apart from distress) items of more than insignificant
value (ie the odd tools etc that are often found in garages), I would
agree that it then becomes a criminal matter, but it is not at this
point.
peterwn
>
> Everyone commenting about adverse pssession in this thread seems to be under
> at least one misapprehension.
>
> First, since the Land Registration Act 2002, it is no longer possible to
> obtain title to registered land without the proprietor being notified and
> given at least two years to remove the squatter, subject to three exceptions
> that would not apply here.
And if the owner is not available for notification ?????
>
> Second, it is not possible to get a leasehold title by adverse possession.
>
That makes sense, since the 'prize' is freehold title.
However there could be an 'untested' area of law here.
The OP is most likely to be able to exploit a lessee default to gain
possession. However in the extremely unlikely situation of a lease
requiring no continuing lessee obligation, it would seem reasonable at
common law for the lessor to take 'adverse' possession against the
lessee if the lessee abandons the leasehold interest IMO. This may be
literally 'unprecedented' but possible with the Supreme Court having
the final say in such a matter. Again this is an extremely unlikely
situation since in such a case the lessee would be most likely to be
in default of the lease in some way.
> Third, it is not possible for a tenant to get title by adverse possession
> against his landlord.
Agreed that the OP cannot get adverse possession against the
freeholder, this never being the OP's intention. But as I mentioned
above there seems no fundamental reason why a landlord cannot seek
adverse possession against a tenant. The landlord can be the freehold
owner or a lessee higher up the 'food chain'.
>
> Fourth, the landlord will undoubtedly object if the OP attempts to be
> registered as owner of the freehold to the garage.
>
Agreed, but this is not the OP's intention, the OP would be seeking
adverse possession against his tenant.
Agreed then generally the OP cannot really contemplate adverse
intention, but the OP is very unlikely to have to go down this route.
Ste
>
> Everyone commenting about adverse pssession in this thread seems to be under
> at least one misapprehension.
I wasn't. I stated quite clearly in my earlier post about "the old
rules" (that is, 'clear' enough to prove now that I wasn't under any
misapprehension).
> First, since the Land Registration Act 2002, it is no longer possible to
> obtain title to registered land without the proprietor being notified and
> given at least two years to remove the squatter, subject to three exceptions
> that would not apply here.
Yes, but the title is registered at Stav's address.
> Second, it is not possible to get a leasehold title by adverse possession.
Actually, it is. I didn't think so at first, but I checked and it is
indeed possible to gain a leasehold by adverse possession, because of
course the 12 years of possession were adverse to the leaseholder. It
probably doesn't happen very often, and the book I have points out
that the lease can still be surrendered by the paper owner, but since
Stav has the head lease, the garage would revert back to him even in
that event.
> Third, it is not possible for a tenant to get title by adverse possession
> against his landlord.
Yes it is, if he doesn't pay the rent that is due under the tenancy/
lease (Hayward v Chaloner [1968]).
> Fourth, the landlord will undoubtedly object if the OP attempts to be
> registered as owner of the freehold to the garage.
As I say, he would not gain the freehold, because the averse
possession is not adverse to the freeholder (for the freeholder
presently has no right to possess the leased premises).
Ste
>
> Remember this all started because he found he was paying rent for a
> garage that was not in his possession. He then found he was lessor of
> the garage and figured that there was a lease somewhere. The lessee
> is very likely to be in default, but this depends on the terms of the
> lease.
>
> He has entered the garage and installed a new lock, the 'adverse
> possession' clock starts ticking from thast point. He has made enquiry
> about the items found within. Unless there has been recent changes to
> property law, he could probably 'distrain' the items - get them sold
> at auction and use the proceeds to offset any defaulted rent and
> maintenance payments.
That's quite true. It would require the lease to be in default
however, and unless he has made a formal demand for rent (which he
hasn't), he cannot simply enter and distrain.
> The OP could be accused of committing a crime. However as the OP has
> some of the property rights over the garage and given the other
> circumstances, any prosecutor would have his time cut out proving
> 'mens rea'. It would be more of a civil rather than criminal matter.
I agree that *so far*, his actions would be excusable under criminal
law, but now he knows that the garage is in use, if he follows some
formalities (like displaying prominent notices, and attempting to
trace the owner) then he can commence adverse possession. But he
cannot simply enter, throw out the contents, change the locks, and
then expect to go before a Magistrate and claim that he thought he had
a right to do what he was doing.
> > > As a fallback he should aim for 'adverse possession'. The new lock is
> > > a good start. He should keep a diary of activities, the sale docket
> > > for the lock could be helpful. If he sells in the 12 year period he
> > > can 'transfer' the 'right' of adverse possession to the buyer, who can
> > > 'consumate it' by putting a fresh lock on the garage (see
> > > Bukinghamshire Council v Moran [1990] Ch 623 where a new padlock and
> > > chain on a gate worked wonders). So if Stav sells up in say 8 years
> > > time, the new owner has only 4 more years to wait.
>
> > Yes, but Peter you should realise that you're potentially advising
> > Stav to commit a criminal offence. What he intends to do amounts to
> > little more than stealing the garage. If he is able to keep adverse
> > possession of the garage for 12 years, then he probably deserves it,
> > but if the owner turns up before then there could be some very serious
> > consequences indeed. At the very least, if he intends to go down the
> > adverse possession route, then he should first take all practical
> > steps to trace the garage leaseholder as a defence to any later charge
> > of dishonesty - and I would expect that to include a nationwide search
> > against the garage owner's name (unless perhaps the name is Jones, or
> > John Smith).
>
> I am not advising anything. He has already committed the act that
> could be considered 'criminal'.
Possibly, but I think at this stage his motives were curiosity, and
the police would simply say it was a civil matter (and even the owner
himself would probably forgive the trespass, and just demand the cost
of replacing the locks). But to throw out the tools is likely to get
everyone's backs up, because it's clearly beyond the pail to say that
you thought you were entitled to enter someone else's property and,
upon finding their possessions, throw them away.
> In this respect, he is in a no worse position than the apartment
> squatters in Mayfair.
>
> Actually the OP could trump up and document an excuse for entry, such
> as the need for a maintenance inspection, this is a property right he
> has over the garage.
But again, he would have to have given reasonable notice (and
presumably detail reasonable grounds, too). He cannot simply break in
at the drop of a hat.
> > He should also bear in mind that with the adverse possession route, he
> > will be liable in conversion (until the limitation period) to the
> > garage leaseholder for the full value of the goods therein, which Stav
> > has expressed an intention to dispose of.
>
> That is OK. If he sold the goods at auction, he can merely pay the net
> proceeds to the owner if and when demanded. Personally, I would just
> store the tools out of the way if possible.
Not necessarily. Stav will be liable for the cost of replacement, not
the value realised at auction. A bundle of tools may sell for a
relative pittance at auction, but could cost substantially more to
replace.
> Agreed, there is a whale of a difference whether there are a few
> incidental tools stored in the garage or whether the garage is chock
> full of household possessions. In the latter case I would agree that
> the OP should not dispose of them if attempting adverse possession. OP
> should in this case store a few of his own items there as well for the
> 12 years (I indicated earlier that the OP would have had right od
> entry for inspection).
No, for adverse possession to work, he must take full possession -
which in practice means he must either store the tools elsewhere, or,
store them until the limitation period and then claim he threw them
out at the outset. If he is just using the "spare" space in the
garage, then his possession is not adverse to the garage leaseholder's
possession.
Chris R
>> possession.
>
> Actually, it is. I didn't think so at first, but I checked and it is
> indeed possible to gain a leasehold by adverse possession, because of
> course the 12 years of possession were adverse to the leaseholder. It
> probably doesn't happen very often, and the book I have points out
> that the lease can still be surrendered by the paper owner, but since
> Stav has the head lease, the garage would revert back to him even in
> that event.
>
operates as an assignment of the lease, but the freeholder would be notified
and would be able to object; usually he would, but in this case perhaps not.
>
>> Third, it is not possible for a tenant to get title by adverse
>> possession against his landlord.
>
> Yes it is, if he doesn't pay the rent that is due under the tenancy/
> lease (Hayward v Chaloner [1968]).
>
haven't seen a full report.
>
>> Fourth, the landlord will undoubtedly object if the OP attempts to be
>> registered as owner of the freehold to the garage.
>
> As I say, he would not gain the freehold, because the averse
> possession is not adverse to the freeholder (for the freeholder
> presently has no right to possess the leased premises).
Yes, that must also be right, unless Hayward v Chaloner operates there - but
it can't, as the OP has a lease of the garage from the freeholder - except
perhaps on the grounds that the freeholder is now not claiming rent for the
garage!
Chris R
Ste
> >> Second, it is not possible to get a leasehold title by adverse
> >> possession.
>
> > Actually, it is. I didn't think so at first, but I checked and it is
> > indeed possible to gain a leasehold by adverse possession, because of
> > course the 12 years of possession were adverse to the leaseholder. It
> > probably doesn't happen very often, and the book I have points out
> > that the lease can still be surrendered by the paper owner, but since
> > Stav has the head lease, the garage would revert back to him even in
> > that event.
>
> You're right, I stand corrected. Adverse possession of leasehold property
> operates as an assignment of the lease, but the freeholder would be notified
> and would be able to object; usually he would, but in this case perhaps not.
You might know a bit more than me about the new rules, but on what
grounds could the freeholder possibly object to adverse possession of
the lease?
> >> Third, it is not possible for a tenant to get title by adverse
> >> possession against his landlord.
>
> > Yes it is, if he doesn't pay the rent that is due under the tenancy/
> > lease (Hayward v Chaloner [1968]).
>
> As far as I can see that requires the lease to have come to an end, but I
> haven't seen a full report.
Perhaps. My summary of the case says it was an instance where "loyal
churchmen" allowed the local church to use leased land for 25 years
from 1942 without collecting rent, without any explicit arrangement,
and without any acknowledgement of the paper owner. The Rector later
claimed the land as his own, and the COA reluctantly allowed the
Rector's appeal.
> >> Fourth, the landlord will undoubtedly object if the OP attempts to be
> >> registered as owner of the freehold to the garage.
>
> > As I say, he would not gain the freehold, because the averse
> > possession is not adverse to the freeholder (for the freeholder
> > presently has no right to possess the leased premises).
>
> Yes, that must also be right, unless Hayward v Chaloner operates there - but
> it can't, as the OP has a lease of the garage from the freeholder - except
> perhaps on the grounds that the freeholder is now not claiming rent for the
> garage!
Indeed, but the effect is that Stav possessing the garage is adverse
only to the garage leaseholder, and so one way or the other adverse
possession would gain Stav the garage, whether under his own lease in
reversion, or under adverse possession and assignment of the sublease.
Chris R
Ste opined:
> On 29 Nov, 08:55, "Chris R" <inva...@invalid.munge.co.uk> wrote:
>>>> Second, it is not possible to get a leasehold title by adverse
>>>> possession.
>>
>>> Actually, it is. I didn't think so at first, but I checked and it is
>>> indeed possible to gain a leasehold by adverse possession, because
>>> of course the 12 years of possession were adverse to the
>>> leaseholder. It probably doesn't happen very often, and the book I
>>> have points out that the lease can still be surrendered by the
>>> paper owner, but since Stav has the head lease, the garage would
>>> revert back to him even in that event.
>>
>> You're right, I stand corrected. Adverse possession of leasehold
>> property operates as an assignment of the lease, but the freeholder
>> would be notified and would be able to object; usually he would, but
>> in this case perhaps not.
>
> You might know a bit more than me about the new rules, but on what
> grounds could the freeholder possibly object to adverse possession of
> the lease?
>
exposed to that anyway if the lease is assignable without consent. The
landlord also loses the right to pursue the original tenant for rent.
>
>>>> Third, it is not possible for a tenant to get title by adverse
>>>> possession against his landlord.
>>
>>> Yes it is, if he doesn't pay the rent that is due under the tenancy/
>>> lease (Hayward v Chaloner [1968]).
>>
>> As far as I can see that requires the lease to have come to an end,
>> but I haven't seen a full report.
>
> Perhaps. My summary of the case says it was an instance where "loyal
> churchmen" allowed the local church to use leased land for 25 years
> from 1942 without collecting rent, without any explicit arrangement,
> and without any acknowledgement of the paper owner. The Rector later
> claimed the land as his own, and the COA reluctantly allowed the
> Rector's appeal.
>
>>>> Fourth, the landlord will undoubtedly object if the OP attempts to
>>>> be registered as owner of the freehold to the garage.
>>
>>> As I say, he would not gain the freehold, because the averse
>>> possession is not adverse to the freeholder (for the freeholder
>>> presently has no right to possess the leased premises).
>>
>> Yes, that must also be right, unless Hayward v Chaloner operates
>> there - but it can't, as the OP has a lease of the garage from the
>> freeholder - except perhaps on the grounds that the freeholder is
>> now not claiming rent for the garage!
>
> Indeed, but the effect is that Stav possessing the garage is adverse
> only to the garage leaseholder, and so one way or the other adverse
> possession would gain Stav the garage, whether under his own lease in
> reversion, or under adverse possession and assignment of the sublease.
Yes. If the owner of the garage is not traced and does not reply to the
notice fromthe Land Regisrtry, and the freeholder does not object, title can
be gained after ten years' adverse possession rather than 12.
Chris R
peterwn
>
> Because he has an unknown party becoming his tenant; but I suppose he is
> exposed to that anyway if the lease is assignable without consent. The
> landlord also loses the right to pursue the original tenant for rent.
>
????????????? The traditional situation is if A as lessee assigns a
lease to B even if the lessor's consent was required and given, A
still remains liable for any default of B in paying rent. It may be
that recent legislative changes or the terms of the lease has modified
that requirement.
A good rule of thumb for leases (excepting residential tenancies) is
the law very much favours the lessor because judges historically would
have been more favourably disposed the lord opf the manner than the
peasant tenant. Traditionally lessors can fairly readily terminate
leases if the lessee defaults, but it is much harder for a lessee to
escape a lease despite lessor defaults (eg not giving 'quiet
enjoyment').
>
>
> Yes. If the owner of the garage is not traced and does not reply to the
> notice fromthe Land Regisrtry, and the freeholder does not object, title can
> be gained after ten years' adverse possession rather than 12.
>
Presumably the freeholder has no grounds to object as long as the
total rent and maintenance has been received.
Ste
> Innews:4cc94e4e-66b3-4781...@v25g2000yqk.googlegroups.com,
> Ste opined:
>
>
>
> > On 29 Nov, 08:55, "Chris R" <inva...@invalid.munge.co.uk> wrote:
> >>>> Second, it is not possible to get a leasehold title by adverse
> >>>> possession.
>
> >>> Actually, it is. I didn't think so at first, but I checked and it is
> >>> indeed possible to gain a leasehold by adverse possession, because
> >>> of course the 12 years of possession were adverse to the
> >>> leaseholder. It probably doesn't happen very often, and the book I
> >>> have points out that the lease can still be surrendered by the
> >>> paper owner, but since Stav has the head lease, the garage would
> >>> revert back to him even in that event.
>
> >> You're right, I stand corrected. Adverse possession of leasehold
> >> property operates as an assignment of the lease, but the freeholder
> >> would be notified and would be able to object; usually he would, but
> >> in this case perhaps not.
>
> > You might know a bit more than me about the new rules, but on what
> > grounds could the freeholder possibly object to adverse possession of
> > the lease?
>
> Because he has an unknown party becoming his tenant; but I suppose he is
> exposed to that anyway if the lease is assignable without consent.
I would not expect that statement to be correct, unless you have some
authority.
By it's very nature adverse possession is non-consensual; it's
possible that the landlord could take steps against the leaseholder
for breach of the lease (and ultimately perhaps terminate the lease,
and gain possession in reversion), but he could not simply "object" to
the possession, for he has no right to possess the premises in the
first place. Also, if the landlord does not object in a timely manner
(possibly because he doesn't know of the AP), he himself could become
time-barred from making an objection - remember the cause of action
arises at the start of the AP, not simply when the adverse possessor
applies to be registered as paper owner.
And I wouldn't expect a "consent" clause to be particularly prevalent
in long-term leaseholds, because of the obvious diminution in the
value of the lease if the landlord can veto assignments. Also, I
haven't checked, but presumably the new notification rules only
require that the person dispossessed be notified.
> The
> landlord also loses the right to pursue the original tenant for rent.
I presume the "new" tenant becomes bound however, otherwise the lease
will be forfeit. However, I don't expect that there are many cases of
adverse possession, where a paper tenant has been dispossessed for 12
years, but has continued to pay the rent.
> >>>> Third, it is not possible for a tenant to get title by adverse
> >>>> possession against his landlord.
>
> >>> Yes it is, if he doesn't pay the rent that is due under the tenancy/
> >>> lease (Hayward v Chaloner [1968]).
>
> >> As far as I can see that requires the lease to have come to an end,
> >> but I haven't seen a full report.
>
> > Perhaps. My summary of the case says it was an instance where "loyal
> > churchmen" allowed the local church to use leased land for 25 years
> > from 1942 without collecting rent, without any explicit arrangement,
> > and without any acknowledgement of the paper owner. The Rector later
> > claimed the land as his own, and the COA reluctantly allowed the
> > Rector's appeal.
>
> It sounded to me as if it was a periodic tenancy, but it wasn't clear.
We'll have to put that one in abeyance then unless you have further
details, because I don't have any further details of that case.
Although, I cannot see any reason in principle why a tenant cannot get
AP against a landlord, so long as the possession was not licenced, and
so long as the possession was adverse to the landlord.
> >>>> Fourth, the landlord will undoubtedly object if the OP attempts to
> >>>> be registered as owner of the freehold to the garage.
>
> >>> As I say, he would not gain the freehold, because the averse
> >>> possession is not adverse to the freeholder (for the freeholder
> >>> presently has no right to possess the leased premises).
>
> >> Yes, that must also be right, unless Hayward v Chaloner operates
> >> there - but it can't, as the OP has a lease of the garage from the
> >> freeholder - except perhaps on the grounds that the freeholder is
> >> now not claiming rent for the garage!
>
> > Indeed, but the effect is that Stav possessing the garage is adverse
> > only to the garage leaseholder, and so one way or the other adverse
> > possession would gain Stav the garage, whether under his own lease in
> > reversion, or under adverse possession and assignment of the sublease.
>
> Yes. If the owner of the garage is not traced and does not reply to the
> notice fromthe Land Regisrtry, and the freeholder does not object, title can
> be gained after ten years' adverse possession rather than 12.
As I say, I can't see much room for the freeholder to object in any
event.
GB
> On Nov 29, 2:30 am, "GB" <NOTsome...@microsoft.com> wrote:
> No. The OP possesses some remaining property rights over the garage
> and that would include the right of inspection and maintenance, which
> is why he broke the lock in the first place.
What a web you spin from, well, nothing at all really. Imagine a property
with a 999 year lease and a peppercorn rent. Are you suggesting that a
freeholder could just break in to inspect?
I very much doubt the OP has any maintenance obligation for the garage.
Surely, he would know about it if he did? In any case, you can only inspect
by prior arrangement; you can't just break in willy-nilly.
> Hence there is enormous
> doubt that he committed any crime.
I think only in your (fevered) imagination. :-)
--
Take it easy on the kid, SilverFox316; everybody kills Hitler on their
first trip.
Stav
not find a lease for the garage. I'm stumped now - could there be no
lease?
I have a copy of the title for the garage now... a couple of parts
state:
5. (09.10.2001) The Lease comprises also other land
6. (09.10.2001) By a transfer of (ADDRESS) dated 14 September 2001
made between (1) (PREVIOUS OWNERS OF THIS FLAT) 20% of the rent
reserved by the registered lease was made payable in equity out of the
land remaining in this title.
7. Unless otherwise mentioned the title includes any legal easements
granted by the registered lease(s) but is subject to any rights that
it reserves, so far as those easements and rights exist and benefit or
affect the registered land.
* Address and names removed
** the previous owners listed here are the people that sold the flat
to me - not the owner of the garage (two owners ago)
It definitely shows the proprietor as the owner two owners ago.
Any thoughts would be appreciated.
Ste
The garage sub-lease may simply not be registered. The only thing that
changes is that the garage becomes yours automatically after 12 years,
without the owner being notified and given the opportunity to object
first - but, obviously, we've already discussed the potential pitfalls
of the adverse possession route.
Chris R
Ste opined:
The OP said "I have a copy of the title for the garage now" so unless he is
wrong, the title is registered. To the OP: can you quote more of the title?
Does the plan show only the garage? It doesn't sound as if you are quoting
the relevant parts.
Chris R
Ste
> Innews:1a26e345-4cd9-4fdf...@n31g2000vbt.googlegroups.com,
No Chris, Stav starts by saying "I got a letter from the Land Registry
today saying they could not find a lease for the garage. I'm stumped
now - could there be no lease?". He then goes on to say "I have a copy
of the title for the garage now... a couple of parts state: [...]".
In light of the apparent contradiction, I was assuming that he meant
he had got a copy of the lease from elsewhere, or that by "title" he
was referring to some document other than the "lease".
Chris R
I agree it's unclear, but when the OP said he had a copy of the title I
assumed he meant the registered title - what else could he mean? He said the
lease was not included, and seemed to indicate that there might have been a
transfer of part of the leasehold title of the flat, without a new lease,
but we need the OP to explain.
Chris R
fjm...@gmail.com
they are of some help.
1. Whatever may have been the position in the past you can assume that
registered land behaves very much like land in any true cadastral or
Torrens title system. The register is a mirror of title.
What that means is (broadly speaking): what's on the register is
what's true.
It would help if Stav made very clear what the register says (it
should be online so easy to access).
2. There are a set of exceptions to the "mirror of title" rule.
Certain kinds of rights in land, known as overriding interests, which
will affect a purchaser even if they aren't to be found on the
register. That may (or may not) include the garage owner depending on
what the circumstances are (which I can't quite determine from reading
through - but I may have missed something).
3. Its entirely possible to split the title of a leasehold, so that
you have two separate tenants of the same landlord, when you had one
before. It is also possible to sub-lease a part of one's leasehold. I
can't quite work out which has happened in this case, but reading what
Stav says it sounds like there was a splitting of the title so that
each tenant has separate obligations to the landlord.
4. If that's right (and I accept things could easily be otherwise),
the landlord could (assuming there is a forfeiture clause in the
lease) forfeit the lease of the garage on the grounds of non-payment
of rent - there may be conditions on that exercise in the lease. We do
not know the details of this (eg whether rent was properly demanded
and whether it needed to be demanded) because we haven't seen the
lease.
5. Pedantically a tenant has a leasehold estate, but need not be a
lessee. The distinction is so abstruse that it is very unlikely to
come up in practice.
6. It would be odd for a landlord who is able to forfeit the lease of
a garage to do so and then allow a tenant to own it for free (since
they are usually worth quite a bit). Its generally better for a
residential block to force common ownership on garage+lease, but you
don't often see that as a condition in older leases.
It sounds like something that can very very easily be sorted out by a
solicitor with the papers. It also sounds like something that should
have been thought about when the property was bought - so there may be
a complaint against the conveyancing solicitor who handled the
purchase (you should notice these things).
Francis
steve robinson
You really need to seek professional legal advice from a specialist