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This is my question: We want to buy a property and the

Customer Question
This is my question...

This is my question: We want to buy a property and the entire bathroom is a flying freehold over the neighbouring property. It isn't on the title plans so it is effectively registered under the neighbour's title. If we bought it, could we change the title ourselves if we had a statutory declaration from the seller showing ten years of exclusive use?

Lawyer's Assistant: Are you in the UK or are you in the States?

UK

Lawyer's Assistant: What action has been taken so far? What's your ideal outcome?

No action. Ideal outcome is that we purchase and we remedy the defect in title so that we can take out a mortgage on the property.

Submitted: 1 month ago.Category: UK Law
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Answered in 3 hours by:
3/13/2018
Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
JimLawyer
JimLawyer, Senior Associate & Consultant
Category: UK Law
Satisfied Customers: 208
Experience: Senior Associate Solicitor and Litigator
Verified
Hi and thanks for the question. Have you explored the possibility of taking out indemnity insurance and have your discussed that with the mortgage provider at all?
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Customer reply replied 1 month ago
Indemnity insurance providers rejected it because the flying freehold is not on the title. As a result the mortgage offer was withdrawn and we've been informed that it would be difficult to get any mortgage.
Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
Ah ok, thanks for clarifying. Another option then is for there to be a conversion from freehold to a leasehold title, which is likely to be the most effective way to resolve the issues associated with the flying freehold property. This would remedy the defects in the title and it does not require reliance on a chain of covenants to enforce any positive obligations. Has this scenario been explored at all?
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Customer reply replied 1 month ago
It has not been explored, but it's something I'm aware of. Would it involve converting the property I propose to buy to a leasehold, or the one next door, or both?
Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
both, and the leashing would be 999 years with a mortgage provider usually then agreeing to lend. It’s a fairly expensive option - it’s worth speaking to a dedicated firm of conveyancers to give you an idea of costs and options available. I would also look at other lenders as it could be the better option, i.e. explore the other lenders and their criteria as some lend despite flying freeholds and others do not. The attitude of lenders towards flying freeholds varies from lender to lender. Some lenders will lend depending on the proportion of the flying freehold element, some will lend if there is flying freehold indemnity insurance and some will not lend at all on flying freeholds. Further information about lenders current requirements can be obtained from the Council of Mortgage Lenders website, www.cml.org.uk
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Customer reply replied 1 month ago
I can't see the person next door agreeing to that. The reason I initially got in touch was because we want to resolve this with the Land Registry, and we simply want to know if a new owner is able to do this i.e. would a certain period of declaration of use/ownership be required from a previous owner?
Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
Hi again, both freeholders need to agree unfortunately. I have colleagues in the conveyancing department at Slater & Gordon who can offer some advice on this (it should be free / if you call 0161(###) ###-####and day that James Easson referred you).
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Solicitor: JimLawyer, Senior Associate & Consultant replied 1 month ago
Hi, if you could please accept my answer, many thanks
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Customer reply replied 1 month ago
Thanks for your replies so far. I don't really feel comfortable calling, so what I just want to get a sense of is whether a new owner could potentially make an application to register some land that is already registered (in this case, a flying freehold over a neighbouring property), and whether having a declaration of use from the current owner, and the cooperation of the neighbour, would make a difference.
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