The concept of the private garden space has always been a major draw for central London home buyers.
These gardens add an extra appeal and significant value to properties which can cost in excess of £5,000,000 but do not necessarily have an outdoor area to call their own.
There are more than fifty of these garden spaces across London, and they are particularly prominent in the Royal Borough of Kensington and Chelsea, as Notting Hill stars Julia Roberts and Hugh Grant can attest…
Background and possible problems
The arrangements for access to and management of these spaces, in keeping with their rather quaint image, are governed by a hodgepodge of obscure and ancient laws, often causing confusion for anyone buying a home marketed as ‘access to a private garden space’ . “
Legal bases are not always clear, keys can often be passed directly from one owner to the next, and information from sellers on garden maintenance contributions can sometimes be vague and incomplete.
The potential issues surrounding the title and use of these spaces range from ownership of the land itself to the powers and duties of the gardening committee. Garden sites are invariably managed by small committees with a set of by-laws governing the use of the garden.
For the purposes of this article we will focus on access rights to space for individuals and how these can arise and be established. What questions should be asked from the buyer’s point of view so that the key to this oasis of calm is available once the property purchase has been completed?
There are three main laws that govern garden spaces:
- The Kensington Improvements Act 1851
- The City Garden Protection Act 1863
- The London Squares Preservation Act 1931
A good place to start – the Kensington Improvement Act 1851
The City Gardens Protection Act 1863 provides for very few garden spaces (fewer than ten) to fall under its regime. This is mainly because a garden can only be brought back to its concept if the garden falls into disrepair, which is rarely an issue these days.
The London Squares Preservation Act 1931 is primarily concerned with protecting garden squares from building and development. That leaves the Kensington Improvement Act 1851, which governs most garden areas and covers much of Kensington and Chelsea.
In essence, the law allows occupants of land surrounding a plaza to petition the local authority to bring the plaza under the regime established by the law. If approved, the local authority then assumes responsibility for managing the square, but in practice hands this back to a committee made up of the various residents of the square.
The sub-committee may appoint a sub-committee to run the place and set up a budget, etc. The sub-committee must grant access to all persons authorized by law, generally those who pay council taxes.
Check the council tax bill
It makes sense to check a council tax bill for a property you are buying if you think it comes with access rights to a garden space, as the bill will include a separate payment for garden space maintenance should it fall under the Act of 1851.
This gives you the convenience of having household access to the space. This financial endowment certainly makes the life of the Garden Committee much easier, as it does not have the burden of raising relatively small sums for the maintenance of numerous individual residents; the local council takes care of it and then transfers the funds raised to the garden committee.
The 1851 Act is fairly specific as to who is entitled to access and provides that rights extend to the occupants of any house or building whose front or sides face or form part of the square in question. “Profession” in this context means anyone who has the right to occupy a house or apartment, whether as the owner, tenant or tenant on a short-term lease (if the lease is one year or more).
A few years ago there was a high profile case in which a couple fought for several months to prove their claim to a key to the Ovington Square garden. They had bought property in the “neck” of Ovington Square, not directly on the square, although it had an address in Ovington Square.
The garden committee claimed that the house was on a side street and had no right to use the garden. The judge ruled that the house did not fall under the 1851 Act as it did not apply to houses on terraces leading off the square. This ultimately resulted in a successful negligence suit against the buyer’s attorneys for advising that the home qualified.
Check ownership of the square
It is always worth conducting a land registry search to try and establish ownership of the site.
Some may be unregistered titles, but if the title is registered it may well be held by a company formed by residents to hold the title and run the place. Some places have been sold to residents by the major London estates, or long-term leases have been granted in favor of these companies.
If this is the case, you can check with Companies House to see if the person you are buying your home from is a member of the company and can transfer their share to you upon closing.
If he or she isn’t (possibly because he didn’t contribute to the original purchase price of the garden), you may only be entitled to use the garden if you buy into the business, so you’ll need to determine the cost of doing so before You commit to your purchase. In a case we looked at recently, the horticulture company claimed payment of £70,000 in these circumstances.
Can a garden committee allow foreigners access to the garden?
A garden committee is able to admit others to the garden on the basis of annual licenses or longer-term agreements, but is unable to grant legal easements if it is not the owner of the garden.
In practice, many gardening committees issue short-term licenses at a premium to increase their annual income and pay for garden improvements.
Contact the Chair of the Gardening Committee
It is always worth asking for the contact details of the chair of the garden committee and speaking to him directly, as well as a copy of the articles of association and how to obtain a key.
This conversation can eliminate any problems or perceived problems with access. If minutes of the most recent committee meeting are available, these can also be helpful in providing an overview of any current concerns or disputes about the management of the place.