Flying Freehold

[nukecad]

But as I noted above it doesn't seem to be the solicitor who has an issue - the solicitor is advising that it's the mortgage lender who has issues with such indemnities.

Of course the solicitor could be wrong and the lender may accept the indemnity - there is only one way to find out and the solicitor should go ahead if you tell them to.
But if the solicitor is correct and the lender rejects your application then it's a bit of a waste of time/money.

[Tipper]

From your photos and the way the houses are painted it looks to me like you only have 50% of the flying portion.

How much of the flying portion is in your house?

[Lawcruncher]

The point is that the solicitor has no need to refer to the lender. The main task of a conveyancer acting on a purchase is to ensure that no possibility exists of anyone making a successful claim on the property. A diligent conveyancer naturally checks that the title deduced covers all the property being offered for sale. Conveyancers are so used to going by paper that they tend to forget an important principle of real property law:

Possession gives you title if not otherwise explained

It is not only paper which gives you title. A conveyancer can look at all the circumstances to decide if there is a problem

The width of the passage is probably about a metre so the width of the property in doubt will be about 50 cm. So the question we can ask is: Who is likely to be able to show he has a better title to that width than the registered proprietor in possession? The answer to that has to be nobody. Quite apart from that, all the points I made above in post 4 apply so that arguing possession is no more than another string to the owner's bow.

Finally, the whole thing is virtually de minimis.

[Dal1]

This is what I received from the vendor solicitor :
Just to advise on the position – the upstairs rooms at the property overhang the property and this is not reflected on the filed plan. This is called a flying freehold which means owning land which over hangs land you don’t own.
In the old days (yonks ago!!) we used to get plans amended to reflect the correct position but since the new Land Registration Act came in in 2003 this is no longer necessary as the act covers that the plan may not be accurate and that the position on the ground overrides the plan in this situation . The usual way forward to satisfy buyers and lenders it to get a flying freehold indemnity policy which is what the solicitor did who acted for the ***** when they bought and quite rightly so. However, for some reason Faye at ******* does not share my view and further more she wont even refer this situation through to her lender for their comment. This is a really common title defect, especially somewhere like Hucknall where there is a prevalence of terraced housing. I have also asked about 8 different conveyancers who I have spoken to over the last week who all confirm that my stance is correct.
Robyn thinks she may have the unregistered title deeds and she is going to drop them off to me tomorrow morning. The likelihood is that those deeds will be incorrect as that is what the position was plotted from in the first place. I’ll scan them to the lady at the Land Registry but I expect that she will confirm that they no longer alter title plans for this defect.
Hope that sets out the position fully.
I have been through the deeds and I can’t see that there’s anything that will help but I have emailed the lady at the Land Registry to see whether she wants me to send her the deeds. I think I will need to post them as they won’t scan very well as they are so old. I’m off today but will let you know as soon as I have a response.

From the Land Registry
Dear Sirs,
As investigation of the files has shown no error has been made. An application if form AP1 will be required if any amendment to the title plan is required.
Further to your enquiry you may find one or more of our Practice Guides of use. In this instance please refer to practice guide 77.





We spoke with our solicitor this Tuesday and made our position clear and asked for this to be reported back to the mortgage company and for us to be copied in..

When I followed up on Wednesday I was told this was not possible.
Hi Dal,
I am not able to send this to you, this is communication between ourselves and the lender.