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where do we stand legally

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  • where do we stand legally

    Hi..we have quite an unusual problem and havnt got a clue what to do about it.
    After buying and living in our home for a couple of years we found out that approx 1.5m of a bedroom was given to the house next door and the wall was moved to in order to do this...our dinning room is below this bedroom so that means that the people next door occupy 1.5m into my dinning room ceiling...the people we bought the house off didnt inform us of this and when i asked they said "oh yes the people that they bought the house off did it years before ".
    It says nothing about this on our deeds....do you think that too many years have gone by (approx 13 ) for us to do anything about it..we dont really need the space but are worried that if either we or next door sell then we will enter a legal minefield....does anyone know what we should do?.......
    Last edited by christine gavin; 11-05-2009, 12:23 PM.

  • #2
    Assuming (a) that both properties are freehold and (b) that they are in England (or Wales), your neighbours probably have acquired "squatters' rights" sufficient to enable them to claim a "flying freehold" in respect of the part of their bedroom thatg is over your dining room - the dining room bit below their bedroom is a "creeping freehold".

    If you are content with the accommodation you occupy, this is certainly not a disaster. You have two options:

    1: To draw up a "Deed of mutual covenant" between you and your neighbours, whereby you each agree to maintain your respective parts of the building, so that they can rely on continued support from your bit, and you can rely on them maintaing the roof, etc, above their bit. The deed should include an obligation for each new owner of each property to enter into a similar deed with their opposite number when they buy, so that both owners are able to enforce the terms of the deed against the other. This obligation can then be protected by registering suitable restrictions against each property title at the Land Registry

    2: When you come to sell, disclose the existence of the creeping freehold, and be ready to pay for an indemnity insurance policy to cover the risk of the neighbours not maintaining their part of the building. For a property worth £250,000, this would typically involve paying a single premium of £200 approx. These policies are subject to conditions and exclusions, however.

    I assume that none of the alterations inv olved any structural work. If they did, I suggest you get a surveyor or engineer to check that the building is structurally sound

    I hope this helps
    This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum

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    • #3
      Thanks Justin...very helpful...i have now found out that it has been this way for 25yrs so by now it will certainly be a case of squatters rights....Chrissie.

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      • #4
        So there is no scope for altering the physical arrangements - though I don't suppose you wanted to, anyway

        You still have the options of a deed of mutual covenant or indemnity insurance. As the arrangement has been in place for so long, I suggest that indemnity insurance is the quickest, easiest and cheapest solution
        This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum

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        • #5
          Flying Freehold

          Any surveyor should be able to recognise a flying freehold and inform your solicitor of the issue so that you could be properly advised before buying.

          If you or your mortgagee had one sue him/her in negligence for the cost of
          • documenting the situation satisfactorily
          • meeting building regulations retospectively
          • diminution in value of your home.

          Use specialist lawyers found by googling 'professional negligence solicitor' and try to get them to take on the case on a no-win-no-fee basis

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          • #6
            Before you get embroiled in litigation: if you had a professional survey carried out, suing for negligence may be an option, but bear in mind that your potential loss may be minute: simply a single premium for readily-available indemnity insurance cover

            If you did not commission a survey yourself, it is unlikely that your lender's valuer would have any liability to you anyway
            This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum

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            • #7
              Hi ..just out of curiosity...if the house next door was on the market and the owners had moved out ..what would happen if i bashed back thru and and moved the dividing wall back to it original position and reclaimed my property and so declared my own squatters rights...would i be in big trouble or perfectly within my rights.

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              • #8
                As already covered above, it is the neighbours who have acquired squatters' rights. If you break down the wall, that would be criminal damage so, if anyone found out, yes, you would be in "big trouble". If you manage to do it with nobody discovering, and maintain possession for 12 years, you would have "squatted back", as it were!
                This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum

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                • #9
                  Crikey...wont be doing that then....thanks justin

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                  • #10
                    Re: where do we stand legally

                    Hi, I'm following this with interest as recently my neighbour told me he was thinking of moving and the flying freehold that exists between us is unresolved with the land registry. My problem is with the roof space or who owns it, the property is a Victorian semi, until recently having no division in the roof space.
                    For his part he has a front bedroom extending over my entrance hall, and I loose the corresponding amount bedroom space.
                    In the roof space he has built a block work wall along the line of the party wall, and then to follow the line above his flying freehold converted the roof space to and added velux windows to the converted space.
                    No mention of flying freehold on estate agents particulars when i bought it eight years ago. my neighbour was doing building work then.
                    Was he right to claim that part of the roof space as his own to build into, and if not do i have any redress ?
                    Elmo

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                    • #11
                      Re: where do we stand legally

                      I'm not sure what you have "lost"

                      If I understand correctly, your neighbour's first floor juts out over your ground floor. I would expect the "jutting out" to continue upwards until the roof line, so that - for the area of overlap - you own the ground floor only and he owns everything above

                      On that basis, your ground floor "underlap" needs shelter from his "overlap" and his "overlap" needs support from your "underlap"

                      If that is correct, I am not clear what you need redress for - apart from arranging the rights of shelter and support, of course
                      This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum

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                      • #12
                        Re: where do we stand legally

                        "Crikey...wont be doing that then....thanks justin" haha ;D

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                        • #13
                          Re: where do we stand legally

                          Please note that in the last 12 months a number of the major lenders have changed their requirements on Flying Freeholds. No surprise that their appetite for such properties have diminished.

                          This change should heighten the need to take the actions suggested by JustinN
                          Fridays Property Lawyers
                          Specialists in Leasehold Conveyancing

                          Comment


                          • #14
                            Re: where do we stand legally

                            Hi

                            We have discovered that we have a flying freehold too. It isnt on the deeds and was missed by the professional surveyor.

                            We live in an victorian semi and the problem in the loft space where our neighbours loft rooms overlap our house and vice versa. This has become an issue because one of their sons uses their loft room as his bedroom and he is very noisy right through the night. As he's now left university and living back at the house with apparently no intention of moving out this is very annoying indeed as my wife and I both work.

                            Trying to discuss this and come to a resolution with our neighbours hasnt worked - they say its our problem basically.

                            If we'd known about the flying freehold I suspect we wouldnt have bought the property. Do we have any redress with the surveyor for negligence? If its just for indemnity insurance as proposed above then it may not be worth the effort.

                            I am also conscious that he smokes and there is no fireboarding between us and them where the flying freeholds are.

                            Phil

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