Freehold + Leasehold Maisonette

bobbyfishmonk

loubel said:

It sounds like your solicitor messed up when you first purchased, as they should have noticed that the freehold is split between the properties.  I hope you aren't paying them to help you resolve this!

I tried to sell my flat and used the conveyancing firm that I used to originally buy the property. The sale fell through due to the buyer unable to secure a mortgage. So yes, I am paying them to handle the sale of my house - it was a fixed fee arrangement. It has dragged on for ~2 years now, and we are in trying to put this criss-cross lease together.

Is the other freeholder a party to your lease in any way or is there a deed of covenant between them and you relating to the maintenance of the building?

In my lease there are clauses for how the downstairs flat should maintain the flat. A number of the clauses list out my responsibilities to the upstairs maisonette, e.g., to give access to the upstairs flat for related repairs and maintenance.

bobbyfishmonk

Is the other freeholder a party to your lease in any way or is there a deed of covenant between them and you relating to the maintenance of the building?

In my lease there are clauses for how the downstairs flat should maintain the flat. A number of the clauses list out my responsibilities to the upstairs maisonette, e.g., to give access to the upstairs flat for related repairs and maintenance.

I see the following clause in a deed of variation on the original lease for the downstairs flat:

At the request and cost of the Tenant to enforce such of the restrictive covenants as the Landlord is legally entitled to enforce against the owner of the Upper Maisonette known as Flat 2, Acacia Avenue, as successor in title of the covenantor party to the conveyance dated 1 October 1958 and made between John Smith (1) and Joe Bloggs (2) and which touch and concern the Property PROVIDED ALWAYS that the Landlord shall be entitled to decline any request from the Tenant pursuant to this Clause UNLESS the Tenant has tendered security for all of the Landlord's anticipated legal and surveyor's costs in connexion with the said enforcement in a sum reasonably estimated by the Landlord's solicitors for the time being.

Does this help me?

gwynlas

In the time you have lived there have there been any maintenance issues which would normally be shared 50/50?

Do you both pay buildings insurance?

As I understand it the upper maisonette would mostly consist of a flying freehold ie usually when a upper portion off a house extends across a passgeway owned by neighbour, This would mean that it would be much more difficult to sell than yours.

Is your neighbour just being difficult or would you paying all legal fees to regularise the issue appease them?

bobbyfishmonk

gwynlas said:

In the time you have lived there have there been any maintenance issues which would normally be shared 50/50?

Not really, usually when something needs doing I'll do it or he'll do it. There isn't much interaction with upstairs as the property is rented out.

Do you both pay buildings insurance?

Yes.

Is your neighbour just being difficult or would you paying all legal fees to regularise the issue appease them?

Probably. Is it worth me doing this? I guess I am trying to figure out whether the buyer just approached the lender in the wrong way from the outset.

I don't understand why it was so straightforward for me to get a mortgage on the flat, but not for the recent buyer (admittedly > 10 years later).

ThisIsWeird

bobbyfishmonk said:

Yes, this is in London. When I bought the property it was advertised to me as "share of freehold". It seems to me the two freehold titles are in separate names - theres no company in which both upstairs and downstairs hold shares.

Wow, this is a situation!

It appears that this is a mistake - this arrangement just should not exist. An error was likely made, quite possibly at the time you purchased the flat, since you say the FH was seemingly pinned on to your Lease at the last moment. I think it's pretty obvious that this building should have a single Freehold - afaIk, no other option exists in England. So, possibly the whole FH was supposed to pass on to you at the time of purchase, or possibly just your share, but someone messed up the paperwork.

Your upper maison-mate is reluctant to sort this, but surely this will bite them equally when they come to sell - they, too, cannot 'have' a FH maisonette.

Eddddy cautions against a criss-cross Lease, so if this would be a bad move, then I cannot really blame your upstairs owner for not engaging. But, I have no idea what a c-c lease is, so cannot comment. I would suggest, tho', that the other party needs to appreciate that it will ultimately benefit them too. I would add that the best outcome - whether achievable or not - is a shared FH, each of you a director, and each with your own lease.

What to do? I guess ask at LR whether this was a registering error and, if so, how can it be regularised. There's a really helpful employee at LR on here - perhaps a SHOUT-OUT!

The upstairs owner has lived there longer than you - are they open to communication? If so, can they explain what they understand as the FH situation? Eg, who was their FHer before you bought downstairs?

Any way to contact your vendor, even tho' it was 14 years ago? If you seemingly had the FH tagged on to your Lease at the time of purchase, then what did they have whilst they lived in this flat?

I suspect your current conveyancer is out of their depth, which would be no surprise - this will surely be completely new to 99.9% of them. So it may be worth a Google for 'specialist property solicitors', many/most of whom will respond to an enquiry to give their initial thoughts. Set everything out in succinct, brief, chrono bullet points, and then email a good number.

loubel

It sounds like there may be covenants in the conveyance dated 1 October 1958 between the original upper flat owner and original lower flat owner which I would assume were some attempt to deal with the maintenance of the building as freehold flats. As the flats have sold since then, it would seem unlikely that these will help you. It doesn't sound like new Deeds of Covenant were entered when each flat sold. Even if they were, you still have a freehold flat.

 Your solicitors should have been advising you on this when you purchased and told you to avoid. Did they not mention it at all? 

It is in the upper flat owner's interest to get this sorted as well, as they will find it near impossible to sell or mortgage their flat until they do so. It is in your interest to get this sorted quickly though and paying their costs may be sufficient to persuade them on this.

Are your solicitors prepared to pay for this? You say they are working on a fixed fee basis but have you actually made a complaint. If not, this would seem an appropriate time to do so as it certainly sounds like they didn't review the title properly and didn't advise you on what you were buying.

bobbyfishmonk

ThisIsWeird said:

What to do? I guess ask at LR whether this was a registering error and, if so, how can it be regularised. There's a really helpful employee at LR on here - perhaps a SHOUT-OUT!

Do you know who this is - I would appreciate this shout-out to the LR employee, but i'm not sure of the mechanism on here...

The upstairs owner has lived there longer than you - are they open to communication? If so, can they explain what they understand as the FH situation? Eg, who was their FHer before you bought downstairs?

Any way to contact your vendor, even tho' it was 14 years ago? If you seemingly had the FH tagged on to your Lease at the time of purchase, then what did they have whilst they lived in this flat?

The previous owners of my flat left the country, I have no forwarding address of method of communication. I have a few previous documents with their name on it. It looks like they bought the property in 2006, and which point a new title plan and title register was entered into the land registry. Theres a number of 'closed leasehold' documents associated with the property - which I have downloaded, but they reveal little information.

Upstairs is not a particularly pleasant individual to deal with and cooperative, which makes things 100 times worse. They want me to pay for all of the associated legal fees to resolve this, even though they know their flat is in a worse position - but they realise I am trying to sell my flat so are taking advantage of the situation. I've come here to try and ask some opinions on what I should ultimately do.

So it may be worth a Google for 'specialist property solicitors', many/most of whom will respond to an enquiry to give their initial thoughts. Set everything out in succinct, brief, chrono bullet points, and then email a good number.

Any specific recommendations? I'm really after the quickest/least-stress thing I can do - which might be to pay the upstairs legal costs and get the criss-cross lease signed off...

bobbyfishmonk

loubel said:

 Your solicitors should have been advising you on this when you purchased and told you to avoid. Did they not mention it at all? 

No, I was a first time buyer back then so fully in the hands of my solicitors. Nothing was mentioned at all.

Are your solicitors prepared to pay for this? You say they are working on a fixed fee basis but have you actually made a complaint. If not, this would seem an appropriate time to do so as it certainly sounds like they didn't review the title properly and didn't advise you on what you were buying.

I didnt know they had made a mistake until someone said it in this thread just yesterday. Should I ask them to pay for this then? How do I do this diplomatically?

loubel

You should just tell them that you hadn't realised when you purchased the property that it had a non-standard title and would be hard to sell. Had you been told you (presumably) would not have gone ahead with the purchase. You are concerned that no progress seems to have been made in resolving this and you need to therefore raise a formal complaint about the service you have received and ask them to please confirm how they intend to move forward from here.

I would expect them to get their insurer involved to work out how they can either help you resolve the issue or compensate you for their failure to properly advise.

ThisIsWeird

Bfm, even tho' it's the same conveyancing co as bought you the flat, the purchase was 14 years ago, so no idea if they are still liable for what may have been an error or oversight by them. I'd imagine that Google or the conveyancer's regulating body would have the answer to any statute of lim. (Looks like 6 years, so no chance).
I also don't know what a criss-cross Lease is, but I'd find out if I were you, and stop any movement towards this if it ain't 'good', as Eddddy warns (he tends to know his stuff). It appears that your conveyancer is hedging towards this, perhaps 'cos it's the only or easiest solution they know? But, of course, it may be the only realistic option - who knows...
I'll try and find the LR fellow on here - he can then be contacted by adding a '@' in front of his name, I think.
ANYONE KNOW?
As for recommended specialist property solicitors, I can't recall them, but I just Googled, checked their sites, looked at their test cases, and contacted a couple who impressed most (this was a different situation, of course). Incredibly helpful and informative - enough 'free advice' to help guide us on our decision (it was a goer, but in-laws decided against).
Nice hot cuppa, a choccie biscuit, and Google. Perhaps even check out this AI malarkey I keep hearing about.