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    • david171
    • By david171 13th Sep 17, 9:55 PM
    • 39Posts
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    david171
    Cant sell! Flying Freehold and Encroaching land
    • #1
    • 13th Sep 17, 9:55 PM
    Cant sell! Flying Freehold and Encroaching land 13th Sep 17 at 9:55 PM
    Hi

    We are selling our terraced house and our buyer has stated that our rear 2 story extension is encroaching on to our neighbours land according to the title deeds / land registry ordinace survey map and that the upsatirs bathroom in this extension is a possible flying freehold. they have therefore decided to pull out. There surveyor is the person who has raised concerns over this. When you walk into the extension you can see that the walls extend towards the neighbours property and are not in parralel with the main, original house party walls.

    When we purchased the property 12 years ago, the extension was already in situ (its over 50 years old) as is the same adjacent 2 story extension in our neighbours property. we bought the property with cash but still carried out a home buyers survey and searches and this problem was never raised, indeed we are using the solicitor we used to buy the property.

    Could the land registry just not be updated? or has our solicitor made a mistake in not informing us of this when we bought? People at work are telling me that we wont be able to sell now, as buyers wont be able to get a mortgage!

    Any advice helpful
Page 1
    • Doozergirl
    • By Doozergirl 13th Sep 17, 10:27 PM
    • 23,743 Posts
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    Doozergirl
    • #2
    • 13th Sep 17, 10:27 PM
    • #2
    • 13th Sep 17, 10:27 PM
    An element of flying freehold will be allowed by many mortgage companies. Some buyers get jitters over anything, others won't be as fussed.

    I wouldn't take advice from people at work. Very few people have ever experienced flying freehold, but it does happen with terraced houses on occasion.

    Chat with your solicitor, check the percentage of flying freehold against the CML Handbook to give you knowlege about your own position. You'll know what to say next time.
    Everything that is supposed to be in heaven is already here on earth.
    • david171
    • By david171 14th Sep 17, 7:17 AM
    • 39 Posts
    • 15 Thanks
    david171
    • #3
    • 14th Sep 17, 7:17 AM
    • #3
    • 14th Sep 17, 7:17 AM
    THanks - but what if our extension is part built on our neighbours land? The neighbour is a buy to let, so we can even easily contact to discuss buying land etc even if they will allow?

    Can you sell a house if part of it is built on land you don't own?
    • tori.k
    • By tori.k 14th Sep 17, 7:37 AM
    • 2,823 Posts
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    tori.k
    • #4
    • 14th Sep 17, 7:37 AM
    • #4
    • 14th Sep 17, 7:37 AM
    We've been having similar issues, it's a time consuming sort out as the property has to be re surveyed to correct the titles, not an issue with the actual building as it's been there long enough it's historic possession ( or something like that) the flying freehold is not an issue with our high Street lender our broker told us it's only Santander really that won't touch them, but unless the titles are sorted it's unmortgageable in it's current form, as I'm guessing the mortgage company would see it as a problem if they had to take possession of the property. So it does need to be sorted I'm surprised your own solicitor didn't raise the issue when you purchased it was the first thing our solicitor found when he was sent the titles.
    Debit to Credit (stage 1) 3652.34 completed 15/10/16
    Debit to Credit (stage 2) 6299.09 completed 25/06/17
    Last Castle 150,000/ 25300
    • davidmcn
    • By davidmcn 14th Sep 17, 8:25 AM
    • 5,792 Posts
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    davidmcn
    • #5
    • 14th Sep 17, 8:25 AM
    • #5
    • 14th Sep 17, 8:25 AM
    I'm surprised your own solicitor didn't raise the issue when you purchased
    Originally posted by tori.k
    They can only raise it if they're aware of the issue - it might have been apparent from the paperwork but often these depend on someone who has actually visited the property spotting a discrepancy. The OP says they can (now?) see the problem, but if at the time they told their solicitor that they were happy with the title plan etc then their solicitor probably isn't to blame.

    Also not clear how significant the problem is, as the registered plans aren't immensely accurate so it could be arguable that it's all within a tolerable margin of error.

    And if the extension is ancient then I would have thought the first argument was that they've got good title by now via adverse possession.
    • david171
    • By david171 14th Sep 17, 8:47 AM
    • 39 Posts
    • 15 Thanks
    david171
    • #6
    • 14th Sep 17, 8:47 AM
    • #6
    • 14th Sep 17, 8:47 AM
    Do we need the neighbours consent / co operation to get the deeds re-drawn? What time scales are we looking at with and without co operation?
    • ProDave
    • By ProDave 14th Sep 17, 8:49 AM
    • 268 Posts
    • 331 Thanks
    ProDave
    • #7
    • 14th Sep 17, 8:49 AM
    • #7
    • 14th Sep 17, 8:49 AM
    If the extension has been there for 50 years, and nobody has argued it is on "their land" then you should win a claim for adverse possession. (you have had sole use of the land to the exclusion of all others with no other claim)

    I would talk to your solicitor to try and formalise an adverse possession claim before you go back to the market.
    • david171
    • By david171 14th Sep 17, 8:56 AM
    • 39 Posts
    • 15 Thanks
    david171
    • #8
    • 14th Sep 17, 8:56 AM
    • #8
    • 14th Sep 17, 8:56 AM
    It's a double storey rear extension - half is owned and occupied by us and the other half by the neighbours. There surveyor has stated that as the bathroom is larger than the downstairs utility, it may extends over on to the neighbours half and consequently the bathroom may also be a flying freehold. This is all so unexpected!!!! Could it just be an over cautious surveyor. Could it not be that the neighbours downstairs is encroaching on our land?
    • tori.k
    • By tori.k 14th Sep 17, 8:59 AM
    • 2,823 Posts
    • 6,210 Thanks
    tori.k
    • #9
    • 14th Sep 17, 8:59 AM
    • #9
    • 14th Sep 17, 8:59 AM
    They can only raise it if they're aware of the issue - it might have been apparent from the paperwork but often these depend on someone who has actually visited the property spotting a discrepancy.
    Originally posted by davidmcn
    Fair point our solicitor knows the area well, and did groan when we said we were buying
    Debit to Credit (stage 1) 3652.34 completed 15/10/16
    Debit to Credit (stage 2) 6299.09 completed 25/06/17
    Last Castle 150,000/ 25300
    • david171
    • By david171 14th Sep 17, 2:12 PM
    • 39 Posts
    • 15 Thanks
    david171
    No joy from solicitor - refusing to acknowledge anything has been missed or mismanaged.

    To be honest now I just want advice on how to resolve!!!
    • ProDave
    • By ProDave 14th Sep 17, 2:17 PM
    • 268 Posts
    • 331 Thanks
    ProDave
    Have you yet discussed adverse possession with your solicitor? I am convinced that is the way forward. It might have been "wrong" when it was built, but it has been like it for so long, you just need to regularise the situation. It has long passed the qualifying time of sole use without claim from others that adverse possession should be agreed.
    • ScorpiondeRooftrouser
    • By ScorpiondeRooftrouser 14th Sep 17, 2:42 PM
    • 1,891 Posts
    • 2,822 Thanks
    ScorpiondeRooftrouser
    It's a double storey rear extension - half is owned and occupied by us and the other half by the neighbours. There surveyor has stated that as the bathroom is larger than the downstairs utility, it may extends over on to the neighbours half and consequently the bathroom may also be a flying freehold. This is all so unexpected!!!! Could it just be an over cautious surveyor. Could it not be that the neighbours downstairs is encroaching on our land?
    Originally posted by david171
    You should be able to tell that by looking. Is your bathroom sticking into their property or is their downstairs room sticking into yours? From what you say about lining up with the original party wall, it sounds like the former.

    Your solicitor simply wouldn't know about this. If all you bought was the land and building inside the boundary on the Land registry plan, they couldn't know that essentially the extension had been built with your upstairs room overlapping that boundary. They haven't seen the house.

    Is there a boundary extending beyond the extension to the rear? if so how does that fit in?
    • lincroft1710
    • By lincroft1710 14th Sep 17, 2:55 PM
    • 9,641 Posts
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    lincroft1710
    This sounds odd that an extension built in the 1960s would not have the party wall going straight up from floor to roof. I would be checking internal measurements on both floors to ascertain how much (if anything) they differ.
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