13 June 2019
The concept of the private garden square has always been a big draw for buyers of houses in central London.
These gardens provide added appeal, as well as significant value, to those properties that may cost upwards of £5,000,000 but which don't necessarily come with any outside space to call their own.
There are more than fifty of these garden squares dotted around 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…
The arrangements for access to and management of these squares, in keeping with their rather quaint image, are governed by a hotchpot of obscure and ancient pieces of legislation, often leading to confusion for anyone buying a house marketed with "access to private garden square."
The basis of the arrangement is not always clear from a legal standpoint, keys can often be passed directly from one owner to the next, and details provided by sellers of contributions made to the upkeep of the garden can sometimes be vague and incomplete.
The potential issues around the title to, and use of, these squares range from the ownership of the land itself to the powers and obligations of the garden committee. Garden squares are invariably run by small committees with a set of bye-laws in place governing the use of the garden.
For the purposes of this article, we will focus on rights of access to the square for individuals and how these arise and can be established. What are the questions to ask from a buyer's perspective, to ensure that a key to this oasis of calm will be forthcoming when the property purchase completes?There are three main pieces of legislation governing garden squares:
The Town Gardens Protection Act 1863 has only very few garden squares (less than ten) falling under its regime. This is primarily because a garden can only be brought within its scheme if the garden falls into disrepair, which is rarely an issue these days.
The London Squares Preservation Act 1931 is mainly concerned with the protection of garden squares from building and development. This leaves the Kensington Improvement Act 1851, which governs the majority of garden squares and covers a large part of Kensington and Chelsea.
Essentially, the Act enables the residents of properties surrounding a square to ask the local authority to bring the square under the scheme set up by the Act. If approved, the local authority then takes on responsibility of the management of the square but in practice passes this back to a committee which will comprise the various residents in the square.
The committee can appoint a sub-committee to run the square and prepare a budget, etc. The sub-committee must provide access to all those entitled to it under the Act which is generally speaking those who pay council tax.
It makes sense to check a council tax bill for a property that you are purchasing, if you believe it comes with rights of access to a garden square as the bill will show a separate payment being collected towards the maintenance of the garden square, if it is covered by the 1851 Act.
This will provide you with comfort that the household enjoys access to the square. This financial set-up certainly makes the life of the garden committee much easier, as it does not have the burden of collecting relatively small sums for maintenance from numerous individual residents; the council deals with this and then pays the collected funds to the garden committee.
The 1851 Act is reasonably specific on who is entitled to access and provides that the rights extend to the occupiers of every house or building the front or sides of which face or form part of the square in question. "Occupation" in this context means those who have the right to use a house or flat whether as freeholder, long leaseholders or tenants under a short term tenancy (provided it is of a year or more).
There was a high profile case a few years ago where a couple battled for a number of months to prove their entitlement to a key to the garden at Ovington Square. They had bought a property located in the "neck" of Ovington Square, so not fronting the square itself albeit it had an Ovington Square address.
The garden committee contended that as the house was in a side street, it had no rights to use the garden. The judge held that the house was not covered by the 1851 Act, as it did not apply to houses on terraces leading from the square. This ultimately led to a successful negligence claim against the buyers' solicitors as they had advised that the house qualified.
It's always worth arranging a land registry search to try and establish ownership of the square.
Some may be unregistered title, but if the title is registered, it may well be held by a company formed by residents to hold the title and run the square. Some squares have been sold off to residents by the large London estates or long leases have been granted in favour of these companies.
If that is the case, you can check at Companies House if the person from whom you are purchasing your house is a member of the company and able to transfer their share to you at completion.
If he or she is not (possibly because they did not contribute to the original purchase price of the garden) then you may only be entitled to use the garden if you buy into the company so you will need to establish the cost of this before committing to your purchase. In one case we dealt with recently, the garden company was seeking a payment of £70,000 in these circumstances.
It is possible for a garden committee to admit other people to the garden on the basis of granting annual licences or longer term arrangements but it is not in a position to grant legal easements where it does not own the legal title to the garden.
In practice, many garden square committees do grant short term licences in return for premium to boost their annual income and to pay for improvements to the garden.
It is always worth asking for contact details for the chair of the garden committee and to speak to him or her directly, and to obtain a copy of the bye-laws along with details of how a key can be obtained.
This conversation may well flush out any issues or perceived issues with access. If minutes are available from the most recent committee meeting then these can also be useful in providing an overview of any current concerns or disputes over the management of the square.