Amending a lease
Discussion
I'm currently in the process of buying a new flat, which is a ground floor flat in a conversion and is share of freehold. The big attraction for me was the basement, which was advertised as part of the property. However, on checking the lease it turns out the basement isn't mentioned, and my solicitor has confirmed it is not owned by the vendor. He believes it's a defect in the lease, and that it could be amended if the management company agree to that.
Does anyone know whether this is likely to be problematic, and how long it might take? I need a relatively quick completion, and can't really afford to hang around otherwise I'll lose my buyer.
Does anyone know whether this is likely to be problematic, and how long it might take? I need a relatively quick completion, and can't really afford to hang around otherwise I'll lose my buyer.
I would have thought this isn't straightforward. He will need to get all other leaseholders to confirm that they do not have an interest in the basement. You can be sure that if asked they will want to have a share of it or stake a claim. At the very least it will just be time consuming waiting for everyone to respond.
It is not uncommon for the basement to be a shared demise amongst the other leaseholders, even if the only access is via your flat. This is often for access to water mains, meters etc. It could have been forgotten about over the years through poor conveyancing but be sure someone will stake a claim or put a spanner in the works!
It is not uncommon for the basement to be a shared demise amongst the other leaseholders, even if the only access is via your flat. This is often for access to water mains, meters etc. It could have been forgotten about over the years through poor conveyancing but be sure someone will stake a claim or put a spanner in the works!
Does this appear to be just be a paper error, in that the the basement is clearly only used by the flat that you are looking at but the lease doesn't include the correct wording or is there a prospect that there is a dispute about whether your seller has exclusive possession of it and can sell it on?
Assuming it's just that the lease is wrong then your potential seller needs to get it resolved ASAP but it is likely to take a number of months. He'll need a variation to the lease but amending the area of the demise is seen to be a surrender and regrant so it's going to get a bit messy.
Assuming it's just that the lease is wrong then your potential seller needs to get it resolved ASAP but it is likely to take a number of months. He'll need a variation to the lease but amending the area of the demise is seen to be a surrender and regrant so it's going to get a bit messy.
Thanks guys.
As far as the vendor is concerned, they believe it's purely a mistake in the lease. They also have a good relationship with the other freeholders, having lived there for 25 years, so hopefully getting agreement should be relatively easy. I can't really see why someone upstairs would want to claim part ownership of the basement, as it would be useless to them without direct access.
The estate agent selling my flat was relatively optimistic, claiming it could be sorted in a month best case. Now I need to see what the seller's solicitor thinks of it all.
As far as the vendor is concerned, they believe it's purely a mistake in the lease. They also have a good relationship with the other freeholders, having lived there for 25 years, so hopefully getting agreement should be relatively easy. I can't really see why someone upstairs would want to claim part ownership of the basement, as it would be useless to them without direct access.
The estate agent selling my flat was relatively optimistic, claiming it could be sorted in a month best case. Now I need to see what the seller's solicitor thinks of it all.
Have you thought of carrying out a search on the Land Registry web site, either for the flat you are buying or on another flat within the block. I mention this because of the several leasehold flats i own, in differing blocks, my searches of the LR, give me a site plan/colour coded of what is my interests within the block, together with what is a considered to be communal area. A full lease can also be downloaded/read, and if the is a Management Company in operation, one of the Directors have the same might be resident within the block, for a chat.
As long as there is no dispute then you shouldn't have huge issues but I struggle to believe it's going to be sorted in a month. I'd bank on 3 to 4 months minimum. As someone else suggested, I'd sell and make temporary arrangements.
Your seller is now in a very poor position, he needs to resolve this before he can sell to anyone and a potential issue of this sort will put many buyers off, you may be able to use this to your advantage.
IMO this can't be dealt with by a deed of variation, a variation of this type takes effect as a surrender and regrant so there will need to be a new lease.
Your seller is now in a very poor position, he needs to resolve this before he can sell to anyone and a potential issue of this sort will put many buyers off, you may be able to use this to your advantage.
IMO this can't be dealt with by a deed of variation, a variation of this type takes effect as a surrender and regrant so there will need to be a new lease.
Edited by Piglet on Wednesday 27th October 07:14
Piglet, thanks a lot the info. Both of the estate agents thought it would be a deed of variation, but I see that usually if you're extending the size of the demised area then it is a surrender and regrant. However, if the alteration is designed to correct an error in the original lease, then it seems it may be a deed of variation after all...
Edited by JimCross on Wednesday 27th October 18:04
I assume that if the management company agrees it's a mistake then it would be considered a mutual mistake? The property is actually a house converted into 3 flats, each of which has an equal share of the freehold, so I don't really see why it would be in their interests not to agree, given that the other two flats don't have access to the basement.
Whichever way it goes, I'll be making sure I don't pay any additional costs, including my own solicitor's fees.
Given the seller has lived there for 25 years I'm guessing they won't have a lot of come-back with their original solicitor!
Whichever way it goes, I'll be making sure I don't pay any additional costs, including my own solicitor's fees.
Given the seller has lived there for 25 years I'm guessing they won't have a lot of come-back with their original solicitor!
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