Flying Freehold

Doozergirl

jake1 wrote: »

What I need to know is that :
a) Is he in his right to deny me access to the shared passage? (and hence block off our fire exits)
b) Is he in his rights to put a stop valve on our water supply so as to dictate when we get water or not ?
c) Does he have right to stop me from using the shared passage to keep my dustbins the passage like he does ?
I would appreciate some guidance with this and would most appreciate any advice.

I hope you have some kind of legal cover with your insurances He sounds like a nightmare.

Firstly, you need to check your deeds and download the title plans from the land registry for both of your properties. Any shared access should be highlighted on the 'title plan' drawings. If you have right of way across that land it hopefully in the 'title register' online as well. Otherwise you're going to have to dig out the hard copy deeds.

Even if this does not provide frutiful for you, you have clearly established a right of way over that land for 40 years. After 12 years, in law, it would be deemd to have been established, so no, he doesn't really have to the right to do what he is doing but you are going to have to seek legal advice unless you can come up with deeds saying what you need them to and appeal to his better nature.

chappers

I can assure you your indemnity policy will not cover any repairs for damage, whether your policy covers damage caused to a third parties property due to damage to another property is a different matter and subject to your buildings insurance.
Flying freehold is something that is granted it gives you permission to access the part of your property that is actually in, on or over your neigbours property, there is also a second part whereby the person whos land it is on/in or over accepts the freehold. The problem with flying freehold is that it is a covenant between the original owners and in the event of a dispute once you have sold the house your neighbour cannot sue the new owner what he would have to do is go back up the chain idealy to the person who the original covenant was made by now if you are the last traceable person in the chain you could become the person sued(I think that this is what the "nature of defect" clause is saying.
Therefore you take out an indemnity to cover any legal action against you being sued.

In a simple form you make an agreement with your neighbour and then sell your house your buyer cannot be sued by your neighbour but you can, even if it is your buyer who causes the breech the policy as I said indemnifys you of responsibility for the breach and so on as the house is repeatedly sold.
Flying freehold is a very fuzzy area in the law and has caused many a dispute, usually there is no obligation for someone to maintain their property to protect yours as you are not the original owner.

leo5000

The problem is that whilst the original owner has granted rights and covenanted to repair to enforce those covenants you need to go back to the person who granted those rights who in turn would sue the next in the chain and so on. Obviously this can't happen.

I am not making up what the policy states, I have quoted it verbatim. It states it will pay out if the property suffered damage and caused a reduction in open market value on sale. It is zero to do with the risk of being sued by someone.

chappers

Well I don't have the exact policy in front of me but I would be very surprised if they would pay out for something that your/your neighbours buildings insurance will cover. You only have to look at the costs of the policies to see that your average indemnity policy costs the same for an indefinite or extended period, as your buildings insurance costs for one year.
From what I have seen of indemnity insurance policies they don't cover to prevent or repair an event but cover you against the financial effects of the enforcement. i.e indemnify you of the blame.As you said you could in turn be sued so you take out a policy to say that any responsibility stops with you and your policy .In other words your purchaser cannot in turn be sued later down the line as the policy will protect him after you have gone.

leo5000

Well, if my neighbour doesn't have insurance we have a problem don't we? Anyway, from what I understand it would only pay out if you are trying to sell the property. To be honest it really only benefits the mortgage company because if they take possession they want to sell asap. If there is a problem with the property due to the flying freehold it would pay out then. I doubt very many of these policies have actually paid out.

chappers

Absolutely agree with you on that one leo, you can tell again from the costs of these policies how low the risk is, I am personally very sceptical about the efficiency of these policies and do also wonder how easy it would be to make a sucessful claim. I bet there would be massive efforts on the part of the insurers for them to be loss adjusted to kingdom come.

We purchased a property which had a covenant on a six foot wall, which we knew we would want to remove in the future, so we asked the council(the vendors) to indemnify against enforcement of the covenant. they agreed, in the end, as the covenant was made in 1897(between the original builder and the neighbour opposite), the policy cost the princely sum of £79.

glamourpug

once again, MSE has informed me. have just learnt that the house we're in process of buying has 'flying freehold', which I'd never heard of before. seems like it must be v common. the solicitor says that all rights of access for repair, redecoration etc are enshrined in law in the title deeds, or whatever, so sounds to me like the vendor needn't take out indemnity insurance.... do those of you with more experience have any thoughts on that?

Desi

Hello,
Me and my partner are about to buy our first property. It is the first floor flat in a terraced house.

However, our solicitor is concerned as the freeholder is not ensring the building and the owners are insuring the flats separately. The freeholder is the local concil and there are almost no fee and the lease if for 900 years.

Is this property considered 'flying freehold' property? And if it is, what do we need to do to resolve any issues? Is the Indemnity Insurance going to srt out any probems? The solicitor has not even mentioned it.

Not sure if this is an issue or not as it seems that many flats in this type of houses are insured separately.

Please advise if there is anything we need to consider.

If the freeholder is normally providing the building insurance, why there are people and insance companies offering flat insurance as well? The freeholder is not charging any maintenance fees and the ground rent is very very low therefore the freeholder is not involved. Is it something to be concerned about?

Thanks a lot
Desi

Doozergirl

What you describe has nothing to do with a flying freehold at all. If there is a flying freehold then you haven't described that and you are mixing two separate issues into one.

The concern with leaseholders insuring their own interests in a property is that your interest isn't actually only in one part of the building - you need the entire building to be insured if something were to happen to it. If your neighbours aren't paying their own insurance then you are up the creek without a paddle.

It would be better, and cheaper, if you were able to pool together with the other flat to insure the entire building and then you know at least that you are covered.

Indemnity insurance does not sort out any problems - it's an insurance policy that would cover a particular issue should one arise.

The lease should make it clear who is responsible for buying insurance; if it doesn't then I should think they both need amending as if no-one is responsible there is no-one for you to blame when the full building isn't covered. Perhaps an indemnity policy might be available for the lease being defective - I'm not a solicitor and admit to completely guessing on that point.

never_enough

Doozergirl is correct, your problem is nothing to do with a flying freehold.
I am very surprised that the council do not have a block insurance policy as freeholder. I have had several ex-LA flats & they all had a block policy in place. I would be concerned, that there is a potential for some people to not insure their own flat which could cause problems in the future. Building societies/banks always used to require proof of insurance as part of the mortgage, I imagine it's still the case, but there is always room for stupidity. Imho a block policy would be so much more convenient, safer & probably cheaper too.