Transfer of part of leasehold

I am selling my leasehold garden flat. The flat and leasehold were created about 18 years ago as part of a conversion of a large house. When the leasehold for my flat (Flat 1) was first registered with the Land Registry, it was discovered that the garden had accidently been included as part of Flat 2’s title due to an error and so the Land Registry was unable to register the garden to Flat 1. This error was recognised by all parties to both leases and the garden was transferred from Flat 2’s leasehold title (BL97395) to Flat 1’s leasehold title (BL100796) using form TP1. This transfer is noted on both title registers. A few years later, I bought Flat 1. Flat 2 has also changed hands since the garden transfer.

 

I am now selling Flat 1 and the buyer’s solicitor is saying that due to the transfer of part of Flat 2’s title to Flat 1’s title by this method, in the event that Flat 2 forfeited their lease, Flat 1 would no longer have ownership of the garden, i.e. there is some form of dependency between the title’s of Flat 1 and 2. The buyer’s solicitors say that for the historic garden transfer to be correct and remove this risk, both Flat 1 and Flat 2 have to surrender their leases and then be regranted them by the freeholder. 

 

My solicitor does not agree that this is how the law operates in this area and that the method of transfer of the garden was correct. They have also said that were a surrender and regrant submitted to the Land Registry, it is likely that the Land Registry would reject the submission as it would be viewed as unnecessary work.

 

I have two questions related to this:

1. Does transferring part of a title between two leasehold titles by the method described create the type of dependency described by my buyer’s solicitor
   Is there a way of confirming whether the Land Registry would reject the submission of a surrender and regrant request for both flats in advance of submitting all the documentation to the Land Registry? Preparing all the documents and gaining agreement from the owner of Flat 2 is likely to take time, which would be wasted if the submission was rejected.

Ben - you need to rely on your own conveyancer here to advise you as they are aware of the specific details involved including the leases and more
In very general terms there is a dependency as the garden is covered by one lease and the Flat by another
We wouldn't reject such an application on the grounds as mentioned. Leases can be surrendered and regranted. The type of application we might reject is one known as an amalgamation where a request is made to amalgamate two titles of the same tenure and held in identical ownership and in same capacity. That's not what you are referring to here  

Adam - thank you for the swift response. I suspect this won't change your advice but for clarity, the garden is included in the lease for Flat 1. When the lease was initially registered with the land registry, the land registry were unable to include the garden land in the lease of Flat 1 in it's title as it was already registered to Flat 2.

Ben - noted and appreciated but same need to rely on your legal rep here
The TP1 option way back when isn't the method I would have expected the conveyancers to have opted for but as I posted there must be reasons for that and the real Q is do they still apply or is there a 'better' or necessary way of updating things now.