Martyn James: Legal rules for sharing gardens put to the test

It’s fair to say the new lockdown rules have caused a bit of confusion. And with differing rules for all four countries of the UK, just chilling out in the garden has become rather complicated.

Outdoors space is at a premium now

Yet millions of people don’t have access to a garden and are having to make do with communal spaces, shared gardens or nothing at all.

If you’re living in a house divided into flats, you may have the biggest property, but the basement flat might have the sole rights to the garden. Judging by my mailbox, this has led to some tension. So I’ve drafted in my top legal expert mate, Gary Rycroft, to cover your outdoor rights (to cut down the fights).

If you’re buying a flat in a house divided into flats – or renting one – then the lease or tenancy agreement should clearly set out your garden rights. If you’re buying, your solicitor will provide you with a copy, whereas if you’re renting ask your landlord or the letting agency.

The lease is where it can get a bit complicated. There could be any number of different arrangements which were put in place when the flats were originally built, divided up or sold off. Sometimes the garden is retained by the freeholder (landlord) who is responsible for other “common parts” like insuring the building. Or the garden can be owned by one or more of the leaseholders (tenants) but the lease gives shared rights and responsibilities.

Of course, if you own your garden you can do what you like in it – within reason. The planting or failure to control aggressive plants such Japanese knotweed may lead you to your neighbours claiming damages from you, building a fence more than 1 metre high next to a path or highway or 2 metres elsewhere will require planning permissions and nude sunbathing might well in extreme cases “outrage public decency”. There may also be “covenants” on the land set out in the deeds to a house or in the lease of a flat which impose rules, eg against barbecue or hanging out washing.

Our main advice from a legal perspective is good old-fashioned common sense. The absolute golden rule is this: try for as hard and as long as possible not to fall out.

If the rights of access and rules around garden etiquette aren’t clear, or if you think they don’t understand them sit down (two metres apart!) with your neighbours and have a friendly chat. And remember, if you own the flat or house and want to sell it in the future you may have to disclose to a buyer any “neighbour disputes” which can often be a big turn-off.

Even if you don’t have rights to access a garden, but your neighbour does, lockdown has led to some lovely stories about the sharing of otherwise “exclusive” spaces. This is to be applauded. But if you are tempted to be generous with your outdoor space, make sure you set out ground rules and time limits from the off. And just because you’ve been allowed in the garden, doesn’t mean you acquire squatters rights.

Gardens which are already set up as “communal” are a bit different in that they are usually governed by a tenants/management association or the landlord. Anyone who has lived in flats or homes with a communal garden will know there’s a ton of rules around using them, from noise to smelly food and fags. These can be set by the holder of rights/management association, but if you think they are restrictive or unfair you can complain.