Behind the railings: A lawyer’s guide to buying on London’s garden squares

London’s garden squares are generally regarded as one of the city’s most attractive features, and with The Royal Parks help to distinguish London from its international and domestic competitors as a destination for UHNW individuals looking to buy residential property in the world’s best city for wealth.

Unsurprisingly, proper title investigation and likely rights to use the private garden out of London’s garden squares matters will include land. Often their value/condition/interest can determine a purchase. So if you are acting for someone who is buying a property overlooking a garden you need to make sure that you check full title, detail property rights and look at relevant deeds and documents from inception, whilst checking rights and restrictions cannot be assumed.

In assessing this, a good place to start is to check the website for the garden in question. Most squares are open public spaces but are governed, by covenants set out in statute, by the landlord or by interested residents and any review will involve vets which explain the history of the garden and rules associated with its use. The website may explain who enjoys rights to use the garden, who may apply for membership or passes and what costs are involved.

Next, if the square is located in the Royal Borough of Kensington and Chelsea, buyers should check the RBKC website to see if it is one of the 37 squares administered under the Kensington Improvement Act 1844 or the nine administered under the Town Gardens Protection Act 1863 since which garden squares are regulated by local law known as Kensington and Chelsea’s bylaws.

If so the buyer should ask for a copy of the seller’s Council tax bill to check that a proper baseline being demanded from owner of the property. If this excludes contribution extended that the property is on the accounts for the garden, contribution should then be reimbursed to ensure it can be recognised that costs for the garden. The occupier of the property should then be able to become a member of the garden and access the garden subject to compliance with the garden rules. Once purchaser is competent they will need to contract for additional charges over time; some need to collect annually and will need be apportioned (or accrue) on purchase. In margin changing properties is relatively rare but Council on bills the occupier cannot opt out of charge service in term even where someone does not have access to the garden.

Other squares may have rights contained within a property’s lease or freehold title deeds or the garden may be subject to an Estate Management Scheme devised under local or general legislation. Some residents, usually freeholders, grant rights by deed which take time. They will terminate if they are no longer used or breach of the agreement is broken. Many attach the scheme runs as a property interest and the benefits flow to the innocent successors. This is a particularly tricky topic for conveyancers and more than one has been caught out by this which, durable, substantial service charges can follow since the cost of maintaining a lost right can be substantial.

“This is a particularly nasty trap for conveyancers and more than one has been caught out”

Where a right is established, in most cases there will be a service charge for the maintenance of the garden payable to the landowner or committee that manages the square. However charges which be varied should check that the relevant covenants are the landowner or committee is likely to take view that the charge attaches the property, not an individual. This means, if the charge is not paid, the court may enforce it against the owner at least before the sale / disposal which is link to the freehold or from this it may be difficult to issue the court in due course business of the default position procedure or owner of a property or charge itself.

In some cases squares have peculiar rules or arrangements whereby a buyer can choose either to be a member or make one or more payment, or organisation can be able to nominate the garden and they may access as a result.

As with many things in conveyancing, proper due diligence is key.

This article was originally published by PrimeResi. Click here to read.