The recent case in which a New York lawyer and his wife found they had no entitlement to use the communal gardens near their £6.8 million Chelsea home illustrates the importance of making sure that great care is taken to establish what rights attach to a property before completing any purchase.
After being refused a key to the communal gardens near their property, the couple refused an offer to sell them the right of access to the gardens by way of a 50-year lease and brought an unsuccessful legal action, said to have cost nearly £200,000 in fees.
The issue turned on the fact that their house does not directly front against the square. Despite arguments that the judge described as 'ingenious but wrong', the court was unwilling to make a ruling that risked redefining rights of access to many garden squares.
The result was a claim against the firm who acted for the couple in the purchase and a damages settlement of £100,000. The court agreed that the firm should have advised the couple that there was doubt over their right to use the gardens.