Freeholders have been urged to review the terms of flat leases after an Upper Tribunal hearing allowed flat owners in a London block to upgrade a garden licence.
The owners used the enfranchisement process to allow them to permanently enjoy the rear garden of their property.
In the case of 4-6 Trinity Church Square Freehold Limited v The Corporation of the Trinity House of Deptford Strond [2016] UKUT0484(LC), the Upper Tribunal upheld a decision to allow the owners a permanent indefeasible right to access the garden.
Previously, they had only benefited from a revocable licence to use the garden via their flat leases.
As with many apartment blocks, the flat owners had a garden which they had enjoyed for many years. Legally, their right to use the garden was given by a licence granted by the freeholder. As time passed, the residents decided to enfranchise their block so they could keep access and enjoyment of the garden.
The question in this case arose as to whether they could also enfranchise the garden, even though they only had a revocable licence to use it.
Mark Vinall, partner at Winckworth Sherwood, said that freeholders should review the terms of flat leases and warned that in doing so future flat owners may be prevented from changing their licence.
He said: “While this case may appear to be an unqualified success for flat owners, it may in fact operate to their detriment as the freeholder could have defeated their claim by terminating the garden licence before the freehold claim was made.
“So the decision may cause other freeholders to review the terms of flat leases in their blocks.”
