Flying Freehold

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  • Dal1
    replied
    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.


    Leave a comment:


  • Lawcruncher
    replied
    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.

    Leave a comment:


  • Tipper
    replied
    Originally posted by Dal1 View Post
    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?

    Leave a comment:


  • nukecad
    replied
    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.

    Leave a comment:


  • Lawcruncher
    replied
    What is your position? There is a property you want to buy and there is a strong possibility that you may not be able to buy it through your solicitor's actions. That would be fine if the property had serious title problems which cannot be resolved. The question is therefore whether the property has serious title problems which cannot be resolved.

    The position your solicitor is taking is at first sight not unreasonable. It is my view however that careful analysis considering the layout and the relevant law shows there is in fact no problem. If your solicitor is telling you there is a problem you are perfectly entitled to ask her to justify her position. If you are going to do that she needs something to think about. This thread will give her something to think about. If she is professional she ought not to be offended, but either robustly defend her position or concede that she had not thought the problem through.

    Grasp the nettle and refer your solicitor to this thread.

    Leave a comment:


  • Dal1
    replied
    Wow Spain, very nice.

    I haven't referred her to this thread, I'm concerned she might take offence

    Leave a comment:


  • Lawcruncher
    replied
    Originally posted by Dal1 View Post
    Hope you are well.
    Not too bad at the moment thank you.

    Originally posted by Dal1 View Post
    Are you a solicitor and are you on the panel for FHL?
    I was a legal executive, now retired and living in Spain.

    Have you referred your solicitor to this thread?

    Leave a comment:


  • Dal1
    replied
    Hi Lawcruncher,

    Hope you are well.

    Are you a solicitor and are you on the panel for FHL?

    Thanks,

    Dal Gill

    Leave a comment:


  • Dal1
    replied
    Seems like our solicitor has made up her mind. Waiting for the original deeds from the seller to see if they match with the LN plan

    Leave a comment:


  • Lawcruncher
    replied
    Originally posted by Dal1 View Post
    I think the properties were built around 1890-1900.
    Knowing that and looking at the photos there can be little doubt that the part of the property over the passageway goes with the rest of the property. If I were acting for you I would not find it necessary to report the position to the lender.

    Leave a comment:


  • nukecad
    replied
    Originally posted by Dal1 View Post
    Indemnity insurance is not suitable. You have a non-standard lender, they are unlikely to accept this.

    We can report to your lender if they wish, but you should be aware the last matter I dealt with of this nature, the lender cancelled the mortgage offer.
    This seems to be the nub of the matter.

    Your solicitor doesn't have a problem with such an indemnity; he is simply advising you, from his previous knowledge, that your proposed mortgage lender doesn't accept them and will not lend you the money.

    It is your lender's policy of not accepting such indemnities that is blocking things, not the solicitor(s), not the land registry.

    So unless you can persuade your mortgage lender to change their policy, you either need to find another lender who will mortgage that property or find a property without a flying freehold.

    Leave a comment:


  • Dal1
    replied
    Attached Files

    Leave a comment:


  • Dal1
    replied
    Hi Lawcruncher,

    Thank you for you help!

    I think the properties were built around 1890-1900.

    Please see below last response from the Land Registry to the sellers solicitor.
    Unfortunately on First Registration none of the deeds inducing the same, or plans were retained in our files, if you could supply the same we will look into the matter for you.

    Leave a comment:


  • Lawcruncher
    replied
    The plans do not require me to change anything I said above.

    How old are the properties?

    Leave a comment:


  • Dal1
    replied
    Hope this helps.

    Leave a comment:

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