Advice Needed: Freehold owned on Carports with Coachhouse on top

Gingaling

Hi,

Last year I purchased a freehold house from Taylor Wimpey which included the use of a carport at the rear of the property. Due to an error with their legal department, its come to light that my house&garden, plus the carport has been registered under one title.

The solicitor has now sent us a document to sign to effectively have the freehold transferred back to TW so that the car port can be registered under a separate lease and then let to us. TW have appointed a management company whose responsibility it will be to insure and maintain the property....so far it makes sense to me.

However, on questioning the solictor today, he says that the freehold shall pass to the owner of the coachhouse above the carport, and they will be responsible for insuring the full property with us making a small contribution towards this.
This has left me confused, as if it really is the case, then why am I expected to pay an annual maintenance fee to the management company for the upkeep of the carport?!

The solicitor has claimed that if the carports arent registered under a separate lease then the property will be unmanageable and unmortageable as it will have a flying freehold. I'm assuming he means the coachhouse above and not my own property, which is a completely separate building!?

In simple terms, I have a few key questions that I hope someone can help me with:

1. What are the repercussions of doing nothing if I do own the freehold to the carport?

2. If TW want the freehold transferred back to them (so they can either sell onto the flat owner or pass to the management company to maintain) then is it unrreasonable for me to charge them? I would in effect be relinquishing the rights of the land and having to comply with various covenants drawn up as part of the carport lease.

3. I am more than happy to transfer the freehold to the party that wants it - but can someone clarify why I would pay the management company a fee for maintenance and insurance if the freehold eventually transfers to the flat owner?

Sorry for the long post, but the solicitor was recommended by TW when we bought the property so would value a second opinion.

Thanks

AlexMac

I hope someone with more legal knowledge will respond (and may have done while I wandered away from the laptop) but it seems to me that TW have screwed up big-time, and are asking you to roll over and accept their solution, and unknown future costs and consequences.

I think you should not sign anything presented by, in your words;

'The solicitor (who) has now sent us a document to sign to effectively have the freehold transferred back to TW...the solicitor was recommended by TW when we bought'

Do no nothing in a hurry, but get another solicitor who is (a) not incompetent and (b) not in TW's pocket because of their fat fees to be briefed by you and represent YOUR interests. And tell TW to pay for that and if they refuse, sit tight and do nothing til they cave in (and at least call a local conveyancing solicitor prior; if they won't talk to you, they're not worth using)

The screw-up does not (yet) significantly dis-benefit you, but appears to be a massive problem for the owner of the coachouse. If they've bought a dodgy 'flying freehold' (which buyers and leders don't like) or a leasehold where there is ambiguity about who the identity of the freeholder (it seems you are, at least in part), that is a major problem for future resale, and thus, its future value. If I'd bought it, I'd be challenging and possibly seeking redress from my conveyancer (TW's patsy?)

If you are in effect being asked to 'sell' something you own (a freehold) for nothing why should you co-operate blind? And if you are then being asked to get into an uncosted triangular relationship
-with the owner of the coachhouse (who will be the 'landlord' of the garage which they lease to you, and thus, in control of its management, maintenance, insurance and whose lawyers may have to get involved and get paid when in future you sell your two properties- your freehold house and its associated leasehold garage...)
-and the management agent- who will have god knows what role or power, unknown present costs and efficiency, but probably is in business for profit rather than to do you a favour?

Or call me cynical...?

propertyman

You make a good point it's their mistake and while bearing in mind that it will be hard to sell as any buyer solicitors should spot this, as yours should have done, I would be looking for a cheque, as a "sorry" and/ or a lease of say 999 years at a peppercorn rent, ie nil, perhaps no insurance for 5 years..

The problem is that the definition of freehold is one of verticality, from the centre of the earth to the top of the sky, so it is impossible to have one over the other, especially when it is not simply an airspace but a physical structure which is reliant of several people as a whole to stand.

While flying freehold can survive with complex cross covenants similar to those in leases, they are unwieldy and unpopular with lenders and buyers.

As a result the only way someone owning a freehold can carve up chunks of ownership is to grant long leases.

Imagine if you own the coach house and underneath there is this bloke living in a house, but using the carport for free while I have to pay for the upkeep of the building and insurance, he really should chip in.

As part of negotiation the lease might preclude any management fees being charged and TW will have to come to some arrangement to sort out the mess they created.

Gingaling

Thanks for your responses - I think I will contact a local conveyancing solicitor to get a formal view in my interests.
I'm more than happy to pay a contribution towards the upkeep and insurance, I just dont want to pay charges to the management company if actually the freehold and responsibility for the building lies with the coachhouse owner.

The current solicitor has advised that TW would be unlikely to pay me anything to get the freehold transferred back to them as they know that if I dont do it, the flying freehold situation will be created and therefore it's in my best interest just to transfer it back anyway. Is this right? Given that my actual house is completely separate to the carports, is the flying freehold a problem for me and could my house be unmortgageable as a result?
I want the problem rectified and am happy to lease the carports from the new freehold owner, but if TW have messed up then it would be nice to get some compensation from them.
Thanks again

propertyman

Well yes, I explained that in my post.

Housebuilders don't like bad publicity.....