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rights of access on communal stair (Read 4062 times)

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rights of access on communal stair
Mar 7th, 2003 at 8:39am

I bought a flat 6 years ago in a converted shipping office in Leith. When I viewed the property, the owners showed me the cellar. IIRC, my survey report also made mention of the cellar (but stated that it hadn't been inspected).

Until approx. 1-2 years ago, I had unencumbered access to this cellar. However, on my last visit to the property (it is currently let out) I noticed that the door to the cellar had been locked (from the inside!). Previous to this, the door had been the only way in or out of the cellar.

I should say at this point that there used to be an entrance to an office on the ground floor inside the stairwell before I bought the property. The previous owner of my flat had a 3 year legal battle with the owners of the office which resulted in the office door being bricked up and the office entrance being reinstated on the street. Since then, they have always had to request access to the stairwell to be able to check their wiring, which, as far as I was told, is in the cellar. I suspect very strongly that it is the owner of this office that has created alternative access to the cellar via the office and, for security reasons, has blocked off the stairwell's access to the cellar from the inside.

I have requested a copy of my deeds from my mortgage lender and, whilst I await the arrival of these, I have 3 questions relating to the above situation that I would like to ask:

(1) What should I do if my deeds include access rights to the cellar?

(2) If my deeds do not explicitly mention cellar access rights, what right do I have to insist on reinstatement of access, given that, to the best of my knowledge, this access has been open (no lock on entrance door) ever since the building was converted in 1983 and what proof would I need to provide to convince the courts of this fact?

(3) If it turns out that I have no rights at all, what recourse do I have to claim compensation from either the previous owners (if they can be traced) for misrepresentation - especially if the surveyor can confirm that he was told by the owners that cellar access was included in the sale - or the solicitor, for being negligent in not confirming proper title in this instance?

FWIW, I've also emailed my original solicitor asking if she has kept any records of this transaction when she acted on my behalf as the purchaser.

One final thought...if no mention is made of right of access to the cellar in my deeds, would it be worth finding out who has locked the cellar and checking their deeds on the offchance that it's not mentioned in their deeds either? (an oversight on the part of the solicitor/developer who apportioned the building when converting it into flats)?

What would the legal position be if there's no explicit mention in anyone's deeds (unlikely, but possible)?

Laurence Molloy.
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