The concept of private garden space has always been a major draw for home buyers in central London.
These gardens add added appeal and significant value to those properties that can cost over £ 5,000,000 but don’t necessarily have an outdoor space to call themselves.
There are more than fifty of these garden spaces in London and they are particularly well known 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 places are regulated by a hotchpot of obscure and ancient laws, consistent with their rather curious image, which often leads to confusion for anyone buying a house that markets “access to private garden space” becomes. “”
The basis of the agreement is not always clear from a legal point of view, keys can often be passed directly from one owner to the next, and information from sellers of contributions to the maintenance of the garden can sometimes be vague and incomplete.
The potential issues related to the title and use of these spaces range from ownership of the land itself to the powers and responsibilities of the gardening committee. Without exception, garden spaces are operated by small committees with a series of statutes that regulate the use of the garden.
For the purposes of this article, we will focus on the rights of individuals to access space and how these arise and be ascertained. What questions need to be asked from the buyer’s point of view in order to ensure that a key to this oasis of calm is present after the property purchase is completed?
There are three main laws governing garden spaces:
- The Kensington Improvement Act 1851
- The Town Gardens Protection Act of 1863
- The London Squares Preservation Act of 1931
A good place to start – the Kensington Improvement Act 1851
The Town Gardens Protection Act of 1863 has very few garden spaces (fewer than ten) falling under its regime. This is mainly because a garden can only be included in its schema if the garden decays, which is rarely a problem these days.
The London Squares Preservation Act of 1931 is primarily concerned with protecting garden spaces from construction and development. That leaves the Kensington Improvement Act of 1851, which regulates the majority of garden spaces and covers a large part of Kensington and Chelsea.
In essence, the law allows residents of land surrounding a square to request the local authority to bring the square under the regime established by the law. If this is approved, the local authority takes responsibility for the administration of the place, but in practice hands it back to a committee made up of the different residents of the place.
The committee can appoint a subcommittee to manage the space and draw up a budget, etc. The subcommittee must grant access to all those entitled under the law, that is, generally to those who pay the council tax.
Check the council’s tax bill
It makes sense to check a council tax return for a property you are buying if you think it is linked to the right of access to a garden space, as the invoice shows a separate payment for the maintenance of the garden space, if so it is covered by the law of 1851.
This gives you the convenience of the household having access to the space. This financial statement certainly makes the life of the gardening committee a lot easier, since it does not have the burden of collecting relatively small amounts for the maintenance of numerous individual residents. The council takes care of it and then pays the raised funds to the gardening committee.
The law of 1851 specifies who has access and provides that the rights extend to the occupants of any house or building the front or sides of which face or form part of the square concerned. “Profession” in this context means those who have the right to use a house or apartment, be it as the owner, long-term tenant or tenant in the context of a short-term tenancy (if it is a year or more).
A few years ago there was a high profile case in which a couple struggled for several months to prove their claim to a key to the garden in Ovington Square. They had bought a piece of land on the “neck” of Ovington Square, not in front of the square itself, even though it had an address on Ovington Square.
The gardening committee claimed that the house on a side street had no rights to use the garden. The judge took the view that the house did not fall under the 1851 Act as it did not apply to houses on terraces leading from the square. This ultimately resulted in a successful negligence lawsuit against the buyers’ attorneys as they had communicated that the home was qualified.
Check the ownership of the place
It is always worth doing a land register search to determine the ownership of the place.
Some may be unregistered titles, but once the title is registered it may well be held by a company established by local residents to hold the title and run the place. Some of the major London estates have been sold to residents or long-term leases have been signed for these companies.
If so, you can check with Companies House to ensure that the person you are buying your home from is a member of the company and can transfer their stake to you when they close.
If not (possibly because you did not contribute to the original purchase price of the garden) then you may only be eligible to use the garden if you buy into the company. Hence, you need to determine the cost of this before committing to your purchase. In one case we discussed recently, the gardening company requested a payment of £ 70,000 under these circumstances.
Can a garden committee give non-residents access to the garden?
It is possible for a gardening committee to accept other people into the garden based on annual licenses or long-term agreements, but it is unable to provide legal relief unless it has the legal title of the garden.
In practice, many gardening committees grant short-term licenses in return for bonuses to increase their annual income and pay for garden improvements.
Get involved with the gardening committee chairman
It’s always worth asking for the contact details of the gardening committee chairman, speaking to him directly and getting a copy of the bylaws and details of how to obtain a key.
This conversation can resolve issues or perceived issues with access. If minutes of the last committee meeting are available, they can also be helpful in getting an overview of current concerns or disputes regarding the administration of the place.
