Tweet
We are a block of 14x flats hoping to collectively enfranchise. The building was converted in 2005 and that’s when all the leases were first granted. All the leases have 100+ years remaining.
The garden is to the side of the building and directly accessible from the public highway so it is ripe for development! When the leases were granted in 2005, none of the leases contained a right to use the garden. To be fair, we have never used the garden as a garden though and instead we have used the whole of the garden as parking land. None of the leaseholders have had lease extensions by the way.
In 2010, 1x leaseholder entered into a deed of variation with the freeholder at the time. This deed of variation added a right to use a ‘communal garden’. This was expressed as an ancillary right. We got a new freeholder in 2017 and now we want to collectively enfranchise. Are we entitled to include the garden in our enfranchisement claim or just the building containing the flats?
Cutter v Pry Ltd 2014 states that for something that is outside of a demise to be capable of enfranchisement, it has to be something that the leaseholder’s lease gives them the right to use in common with others. Because of a deed of variation in 2010, there is only 1x lease with a right to use the garden and the right does not state that it is a right ‘in common with others’. None of the other leases were ever varied ….
We have decided that if we are not entitled to include the garden in our enfranchisement claim, then we should not make a collective enfranchisement claim as this will only prompt the freeholder into boarding off the area on completion of enfranchisement - resulting in us losing our free car parking.
The garden is to the side of the building and directly accessible from the public highway so it is ripe for development! When the leases were granted in 2005, none of the leases contained a right to use the garden. To be fair, we have never used the garden as a garden though and instead we have used the whole of the garden as parking land. None of the leaseholders have had lease extensions by the way.
In 2010, 1x leaseholder entered into a deed of variation with the freeholder at the time. This deed of variation added a right to use a ‘communal garden’. This was expressed as an ancillary right. We got a new freeholder in 2017 and now we want to collectively enfranchise. Are we entitled to include the garden in our enfranchisement claim or just the building containing the flats?
Cutter v Pry Ltd 2014 states that for something that is outside of a demise to be capable of enfranchisement, it has to be something that the leaseholder’s lease gives them the right to use in common with others. Because of a deed of variation in 2010, there is only 1x lease with a right to use the garden and the right does not state that it is a right ‘in common with others’. None of the other leases were ever varied ….
We have decided that if we are not entitled to include the garden in our enfranchisement claim, then we should not make a collective enfranchisement claim as this will only prompt the freeholder into boarding off the area on completion of enfranchisement - resulting in us losing our free car parking.
Comment