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Our clients own the ground-floor flat of a maisonette property, together with a share of freehold. The upstairs flat (top floor) owner held a legal right of way over the garden (which in reality was very small) belonging to our clients. In practice, the upstairs owner never used this right of way and had owned the property for many years. The upstairs flat was in the process of being sold, and our client was concerned about how a new buyer might use the garden given the existence of a right of way.
With the upstairs flat being sold, our clients were concerned that the buyer might assert the right of way, or use the garden differently, introducing uncertainty for our clients’ enjoyment of the property.
The garden was very small, which caused practical and privacy concerns for our clients.
The seller did not want to change any rights or vary the lease prior to the property being sold.
We needed to act quickly to ensure that an agreement was reached before the sale transaction completed.
If an agreement could be reached, we needed to ensure that any Settlement Agreement and Deed of Variation would properly bind the upstairs owner’s successors and the new buyer, and that the title/registration reflected the changes and to cover rights, obligations and future enforceability.
A Settlement Agreement and a Deed of Variation was successfully negotiated and executed, removing any right of way over the garden in favour of the upstairs flat.
By us acting quickly, we ensured that the dispute was concluded before the upstairs flat was sold. This also avoided the buyer facing a dispute after purchasing the property.
Our clients now have legal certainty over the garden, and they have avoided any privacy concerns.
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