Flying freehold

[SouthernDave]

I’m hoping Lawcruncher or other legal minds can comment on this… seen a property to buy, its terraced so there’s a house on both sides, but there is an open walkway through the house to allow access to the rear garden. This also gives access to the immediate neighbours gardens. the ‘alley way / tunnel” cuts into the downstairs of the property making it quite narrow on the ground floor, the first floor extends over the top of it. Every 4 houses on the road it’s the same.

did a title search on it, turns out the alley / tunnel is not within the title. Looking at others on the road, the tunnel is owned by the house whose first floor extends over and an access right exists for the neighbours. But this particular house doesn’t own it. So the first floor is over land that isn’t owned. The tunnel is actually unregistered.

my question is; is it a problem?

[Lawcruncher]

The situation you describe is by no means unusual. It is though one of those cases where it is potentially a problem because it is perceived by some to be a problem because it is perceived by some to be a problem..

It goes like this:

Are you likely to have a problem in practice? No. (Bear in mind that you can have problems with neighbours even if your title has no glitches on it. For example, your title may clearly and unequivocally show you have a right of way over your neighbour's land, but that may not stop your neighbour thinking he has the right ti obstruct it.)

The situation has a flying freehold as the space in the tunnel and the land below do not go with the property. The proportion of the property affected is small. Such concerns as there may be about the maintenance of the dividing wall are no different to the situation where two terraced properties adjoin and there is no tunnel. The position is quite different from that of a flying freehold flat where there are genuine legal problems in enforcing preparing obligations.

When the words "flying freehold" come up they frighten some people. The different scenarios tend to get lumped together so all cases are assumed to be problematic. The problem when buying with a mortgage is that the conveyancer has to report the position to the lender. Lenders these days never make a decision "taking a view", but throw it back on the conveyancer who then assumes the risk if anything goes wrong. Unsurprisingly, most conveyancers are unwilling to assume the risk. What should happen, whether advising lender or buyer, is that the conveyancer clearly sets out the problem and any possible ramifications and it is the lender and client who make the decision relying on the conveyancer's advice.

If I were advising you and you were buying without a mortgage, I would (assuming the title was otherwise in order) tell you that you are unlikely to have a problem in practice while you own the property, but might have difficulty selling it for the reasons set out above.

[SouthernDave]

Ok thank you

[Tipper]

In some similar arrangements the alleyway is actually shared 50:50 and the upstairs rooms are also split 50:50 so not actually a flying freehold at all.

[pilman]

It is possible that the house was originally a council owned property along with the other houses in the terrace.

The register of title may show the details of the original transfer deed with a Copy Filed at Land Registry, as may the register of title for the adjacent house that has access through the walkway.

It would be sensible to apply to Land Registry for copy of each of the Filed Copies if that was to be shown on each of the registers.

That will cost £7 per copy, but then you will be able to see if the next door house was granted a right of way and you house was not.

That would indicate that the alley was intended to be included in the transfer of the house you are interested in and the other house was only granted a right of way.