Two problems with this flying freehold?

juneberry · 9 July 2021 at 10:00AM

Hello! I've had an offer accepted on a property I want to renovate and sell on (first project, cash buyer). I noticed the ground and first floor floorplans are different, and on enquiring, the estate agent's valuer said it's a flying freehold. A portion of the bathroom is above next door's downstairs loo. I've done loads of reading about flying freeholds, the necessary rights of access, support etc and indemnity insurance when rights are missing.

The seller's solicitor has said they're not aware of any part of the property being a flying freehold. I presume this is because it doesn't seem to be on the title plan - although title plans aren't exact anyway - nor is there any obvious reference in the title register. It mentions various grants and deeds, but all are missing. They might relate to the extension rather than the flying freehold anyway.

The seller has offered indemnity insurance.

I'm no lawyer, but this feels like two separate issues:

the issues around indemnity insurance in lieu of rights when I come to sell (not all mortgage companies accept it),
the issue of the flying freehold not being on the title deeds. This looks more serious to my untrained eye.

Therefore, could anyone help me with the questions below?

1) If the flying freehold isn't marked on the title plan or mentioned in the register, does that make the property unmortgageable?

2) If so, is it easy to remedy, or one to avoid?

3) Do indemnity policies always contain exclusion clauses for renovation work? The ones I've seen do, but the solicitor said they could 'look into' a bespoke policy, whatever that means. We'd need to replace the bathroom and kitchen suites, put in a new boiler and pipework etc. If so, that scuppers the whole thing anyway.

Thank you!