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Complex Title Issues

On this page, we'll delve into some more complex legal title issues. From understanding colouring on plans to dealing with restrictions and unusual entries in the Charges Register, we'll attempt to explain what the issue is, how it affects the title and what you can do about and how to explain it to your client. You can either follow the menu links below or use the search box on the right. If you're a subscriber and don't see the answer then why not use the "Ask a Question" option in the left menu?

Flying/Creeping Freehold;
Freehold Flats;
Part of a Building is Missing from a Property Title;
Tyneside Leases;
Mines and Minerals;
Prescriptive Easements;
Covenants in Freehold Land;

What does blue tinting on a freehold title plan mean?

Generally, the title to a freehold property includes not just the land and buildings but the airspace above, up to "the heavens" (subject to some statutory exclusions which don't need to be discussed here) and the subsoil to the centre of the Earth (though mines and minerals are sometimes excluded). If the Property Register refers to blue tinting on the plan however, then that indicates that as to the area tinted blue only part of the title is included - for example, only the ground floor, or perhaps first floor rooms above a passage. Exactly what that means in practice will depend at least partly on whether the blue tinting covers the whole of the footprint of the building on the land or only part of it but it will usually indicate one of the following:

flying freehold; or
freehold flat

Flying / Creeping Freeholds

What is a flying / creeping freehold?

Where part of the upper floor(s) of a building overhangs an adjoining building, or land, and that part is included in the title it is known as a flying freehold (if part of a building goes under an adjoining building that is known as a creeping freehold - the principles are the same either way). Where there is a flying freehold, there will be an entry in the register which reads "as to the part tinted blue on the filed plan, only the [cellar][ground floor][first floor][second floor][rooms over the passageway etc] are included in the title." Part of the land within the red edging on the title plan will be coloured blue. as to that part, only the parts of the building described in the entry are included in the property title - not the rooms above or below or the airspace or subsoil. Flying freeholds are most common where there is a passage between two buildings, the upper floors of the buildings are joined at first floor level, the legal boundary runs down the centre of the passage but one of the buildings overhangs the centre. Creeping freeholds typically occur when the basement/cellar of a building extends under its neighbour, but either can also be a result of interlocked buildings.

You should be wary of confusing flying freeholds with the more serious issue where part of a building is not within the property title. Physically, the building will look like it includes a flying freehold element but if there is no entry on the title referencing blue tinting (and no blue tinting on the plan) then it is simply that part of the property is in fact in the adjoining title, so that a purchaser of the property will not own the whole of it.

What are the issues?

Where there is a horizontal boundary between two properties (i.e. one sits on top of the other), they will need a right of support (for the upper building) and a right of shelter (lower building). A right of support is a right to have your building supported, i.e. if the neighbour wanted to demolish their property they would have to take steps to protect yours from collapse and a right of shelter is the reverse. Rights of access to the adjoining building will be required in case it is necessary to carry out repairs (remember that a flying freehold that overhangs doesn't include the airspace above, so when repairing the the roof you would be in the neighbour's airspace). Finally, mutually enforceable repairing and insuring covenants are needed, since damage to or deterioration of the adjoining building may affect your own. If the rights and enforceable covenants (see below) exist then the title is ok however it is not uncommon to find that they do not. If the buildings have stood for 20 years or more then rights of support and shelter will be implied by prescription. Rights of access for repair could be, but it's unlikely since they won't have been exercised regularly. Covenants cannot be created by prescription.

Even if all the rights and covenants appear to be in place, there may still be a problem. Positive covenants, i.e. obligations to do something such as repair or insure, do not "run with the land". That means that they they are only enforceable against the party that originally entered into the covenant. This will ordinarily be the purchaser under the conveyance/transfer that created the separate titles for the properties. Once one of the properties has changed hands, the covenants therefore cease to be enforceable by the the owners of the properties for the time being.

What are the possible remedies?

If there are no rights or covenants, a deed can be entered into between the neighbours to create the same. There are a couple of caveats here. The first is that the neighbour, that is to say the owner of the property not being sold at the moment, has less incentive. There is some, because putting covenants and a right of shelter/support in place will benefit them, but unless they are actually experiencing problems there is no imperative to take action. They may just sign and return whatever deed is presented to them, but most people would want to seek legal advice (the conveyancer acting in the sale cannot provide that advice as it would be a conflict of interest). The seller, or buyer, would likely need to pay for that and convincing the neighbour to arrange it may prove difficult. The other point is that if the neighbour's property is mortgaged then either the consent of the lender will be required or else it will need to be accepted that the deed will not bind the lender (so that the rights and covenants are lost if the lender repossesses the property).

Subscribers can select the Deed Drafting Tool from the Virtual Conveyancer menu on the left.

If the rights and covenants are present, there is still the problem of being able to enforce the covenants against subsequent owners. That can be overcome by adding a restriction to the title of each property so that every time each property is transferred the new owner has to enter into a deed of covenant with the adjoining owner (to insure and repair etc). In this way the adjoining property owners are always the original covenanting parties.

An alternative to having the property owners enter into deeds would be indemnity insurance. It is possible to purchase a flying freehold indemnity policy, usually for a fairly modest premium, which will provide cover for costs incurred in securing rights/losses suffered as a result of an inability to exercise rights or enforce covenants. It is generally accepted that the seller should pay for such a policy, since the title defect is not something the buyer would have been aware of, when submitting a offer for the property.

What advice can I offer the client?

When advising a client, you of course need to be able to do so concisely and in plain English. It is ultimately up to you how you do that, but something like this is suggested (to be adjusted to fit the specific circumstances):

"You may have noticed that part of the upper floor of the property overhangs the passageway way between this property and number XX. The passageway belongs to number XX. This arrangement is termed a “flying freehold”. When people think of “land” they generally think of what is on the ground but in fact if you own land you also own the airspace above (as well as everything below ground). Part of the upper floor of this property is therefore on the neighbour’s land.

In these circumstances we would hope to see that this property had the benefit of a right of support from the adjoining property and a right of entry for repair as well as a scheme of enforceable covenants which obliges the neighbour to do the following:

keep the structure of his property sound;
insure it; and
ensure that when he sells he arranges for the purchaser to enter into these covenants with you

[IF THE RIGHTS ARE PRESENT BUT THE COVENANTS ARE NOT Although the deeds contain a right of support for your property and a right of access, the covenants are not present ELSE IF NEITHER THE RIGHTS OR COVENANTS ARE PRESENT In this case there are no rights or covenants present. ELSE IF RIGHTS AND COVENANTS ARE PRESENT BUT THERE IS NO RESTRICTION ON THE PROPERTY TITLES MAKING THE COVENANTS ENFORCEABLE Although the rights and covenants are present there is no mechanism that will allow the covenants to be enforced]. This is not uncommon and there are two options available:

varying the title to include the necessary rights and/or covenants; or
indemnity insurance

Varying the Title

This would involve asking the neighbouring property owner to enter into a deed to create the missing rights / covenants and to agree to adding a restriction to their property title so that each subsequent owner has to enter into direct covenants with you. A similar restriction would need to be placed on your title. This approach would remedy the defect once and for all however it is something the neighbour may not agree to and even if they do the seller may not wish to go down that route, or else the seller may expect you to cover all of the associated legal costs. The process may be protracted as, although you and the seller would be keen to progress quickly, there is no such incentive for the neighbour.

Indemnity Insurance

An alternative would be to obtain an indemnity insurance policy. Such a policy would cover any losses you might suffer as a result of these provisions not being present, for example if you are unable to enter the neighbouring property to repair the “flying freehold” element of your own or if the neighbouring property collapses through neglect thus damaging yours. This is the usual remedy in these circumstances and we would request that the seller pays for the policy. When you come to sell, you would need to pay for a policy for your buyer. We cannot guarantee that a future buyer would accept indemnity as a solution of course, though we would expect them to.

Please let us know how you would like to proceed."

You will of course need to delete the inapplicable text from within the square brackets.

Freehold Flats

What is a freehold flat?

Flats, which includes apartments and maisonettes, are usually let on long leases (of 99, 125 or 999 years typically). A freehold flat, in the simplest terms, is one which is not let. The owner simply owns the freehold of part of the building that the flat is in. There are a few different "types" however:

Freehold includes the whole of the building and the other flats are let on long leases - If the freehold title includes the whole of the building (and any grounds) and the rest of the flats in the block are let on long leases, this is ok because the owner of the freehold, as landlord, can enforce the tenant covenants in the leases (and the tenants can enforce the landlord covenants from the lease against the landlord). Unlike freehold covenants, positive covenants contained in leases are enforceable by and against the landlord and tenant for the time being. You will know if the rest of the flats are on long leases because those leases will be detailed in the Charges Register;
Freehold includes the whole of the building and none, or not all, of the other flats are let on long leases - this is simply means that the owner owns the whole block, or more than one flat in the block. This is sometimes called a "multi-unit freehold block". there is nothing wrong with that in principle, however if just one of the flats is to be sold (or mortgaged) then a lease will need to be created for it, with the freehold reversion remaining part of the existing freehold title. Otherwise, once the freehold of that part of the building is separated from the rest the ability to enforce positive covenants is lost;
Freehold includes only the flat itself and it is subject to a lease - this may well be a Tyneside lease (or crossover lease);
Freehold only includes the flat itself (or it includes more than just the flat but not the whole building) and there is no long lease granted out of the title - this is the type of freehold to be concerned about.

What are the issues?

Whilst at first glance it might seem beneficial to own the freehold, because the owner is not answerable to a landlord and there is no diminishing lease term to worry about, however the reality is that it is, or can be, quite a serious problem, because of a lack of, or inability to enforce, positive covenants between flat owners. A block of flats relies on the cooperation of all the flat owners to function most effectively (this is more the case for larger blocks with communal parts but does still apply to any size, even a house converted into 2 flats). Positive covenants are required to enforce that cooperation. These include:

covenants by each leaseholder to maintain and repair their property;
covenants to contribute to the maintenance and repair costs of any common parts (including the structure, roof and foundations);
covenants to insure their property, or else to contribute to the cost of an insurance policy for the whole building;
covenants by the landlord to carry our repairs and maintenance (and potentially to insure) subject to the leaseholders paying their contributions; and
a covenant by the landlord to enforce covenants against leaseholders who fail to comply (for the benefit of the other leaseholders).

Positive covenants do not "run with the land", which is to say that if a landowner enters into a covenant with another landowner, then sells their property, the purchaser may be bound by restrictive covenants (covenants to not do something, such as not to build or not to cause a nuisance) that the previous owner entered into but he will not be bound by positive covenants, such as those listed above. Positive covenants in leases are treated differently, because of the common law doctrine of "privity of estate" and for leases granted on or after 01 January 1996, the Landlord and Tenant (Covenants) Act 1995. Both of these results in the same thing, which is that the current landlord and the current tenant are bound by and have the benefit of the covenants (both positive and negative) in the lease whilst they are the landlord and the tenant.

So, if the flat is a freehold flat, the owner cannot be forced to repair and insure, or contribute to repair and insurance costs, and cannot force the owners of the other flats to do likewise. Although initially the flat owners may agree to a set of rules which they follow voluntarily for their mutual benefit, there is a real risk of the arrangement collapsing should just one fail to comply. As a result of the risk, almost no institutional lenders will lend on freehold flats.

What are the possible remedies?

Creating a lease for the property might seem like an obvious solution, but it wouldn't help unless the freehold of the whole building was in common ownership. If the seller currently owns the freehold of the building then they should grant a lease of the flat to the purchaser rather than transferring the freehold. Use the search box on the right to find out more about granting new leases. If the freeholds of the flats are owned by different people then having the seller grant a lease to the buyer and retain the freehold doesn't help because the positive covenants would still only be enforceable between the seller and the buyer, not the owners of the other flats in the block, so it would still have all of the issues associated with freehold flats.

One option is to get all of the flat owners to agree to enter into a deed of covenant with each other. The covenants in the deed would be similar to those you would find in a lease. The exact detail of how the block would be managed would need to be agreed by all flat owners first. These are the points that should be addressed:

will the flat owners each be responsible for the part of the structure that is included int their freehold title or will all the flat owners be jointly responsible for the building?
if the latter, will an annual or other periodic programme of maintenance works be put in place or will works be carried out on an "as and when required" basis?
will an annual service charge be collected or will contributions be collected only when specific costs are identified?
if yes to the above with the flat owners manage this between themselves or will a managing agent be appointed?
will there be a sinking fund?
will a management company be created in which the flat owners are the shareholders / members?
will each flat owner insure their property or will a policy be arranged that insures the whole building?
if the latter, who will decide on the choice of insurer?
how will the insurance proceeds be divided if the building is destroyed and cannot be repaired?
what will the requirements be on a change of ownership of any flat and how will they be enforced - will there be a fee payable?

Such arrangements may already be in place. If they are then copies of the most recent deeds entered into by all the flat owners should be obtained and checked (so as to ensure that all the current owners have entered into the same covenants) and the buyer should enter into a deed for the benefit of the other flat owners (the others do not need to sign as the right to enforce the covenants does run with the land, it is just the obligation to comply that does not pass to successors). It is imperative that the title to each property contains a restriction requiring a certificate (usually from the purchaser's conveyancer) that the purchaser has entered into a deed of covenant with the other flat owners, before a transfer can be registered. This makes sure that each new owner of each flat has to enter into the covenants. As with any restriction now, one of the standard forms will need to be used. Standard form L is suggested, specifically the following version:

"No disposition of the registered estate (other than a charge) by the proprietor of the registered estate or by the proprietor of any registered charge, not being a charge registered before the entry of this restriction, is to be registered without a certificate signed by a conveyancer that the provisions of {specify clause, paragraph or other particulars} of {date of parties to deed} have been complied with"

The deed referred to will be the deed that originally created the covenants and easements. Once all of the flat owners have entered into the original deed, any subsequent owner simply need to covenant to comply with the terms of the original deed. The original should be filed at HMLR against each title.

If there are currently no arrangements in place, or if they are not formalised, then the seller's conveyancer should seek to arrange for all of the flat owners to enter a deed which:

grants a right of way over any communal areas;
grants a right to use any communal facilities such as gardens or bin stores;
grants rights of access to the other parts of the building for the purpose of repair and maintenance;
if a management company is to be created, grants a similar right for the benefit of the company and its agents and workmen;
contains covenants either to contribute to the maintenance and repair costs of the building or else to maintain and repair their flat, depending on what is agreed;
contains covenants either to contribute to the insurance costs or else to insure;
if the maintenance, repair and insurance is to be dealt with either by the flat owners as a collective or by a management company or residents association, a covenant by the individuals or entity to carry out those functions;
covenants by the flat owners relating to nuisance, such as not to play music between certain hours, not to loiter etc; and
a covenant that on a change of ownership the seller will ensure that the new owner enters into a deed requiring them to comply with these covenants.

This sample letter may prove useful. It is important to remember that none of the flat owners can be forced into agreeing to any proposed arrangement and there is no real benefit to it unless all agree. Any current mortgagees of any of the properties will not be bound by the arrangements, should they take possession and sell.

Should all flat owners agree to enter into a deed this specimen deed of easement and covenants may be amended as appropriate.

What advice can I offer the client?

Where no positive covenants have been entered into between the flat owners, or where they are not enforceable because there is no restriction against each title, then should any substantial work be required to the building such a repairs to the foundations or a replacement roof, each flat owner is relying on the goodwill of the others to pay their share so the risk is that either the work does not get done and the property eventually deteriorates or else the cost will have to be borne by your client alone. Even if the right covenants exist and are enforceable, on or more of the flat owners may refuse to comply. If that happens, the person seeking to enforce the covenant may have to do so through formal legal proceedings, i.e. by suing the defaulter. This can be expensive (with no guarantee that legal costs can be recovered) and as with any litigation there is a risk that it might fail.

In a traditional landlord/tenant setting the landlord has much more powerful weapon in the event of a tenant not paying service charges or complying with other covenants, which is forfeiture. By exercising forfeiture the landlord can terminate the lease, take possession of the property and sell it to recover its loss. That option is not available in a freehold flat setting and is the main reason why most lenders will not lend on freehold flats and why they are less valuable than their leasehold counterparts (assuming a reasonable remaining lease term).

When reporting to a client you may use or adapt the following, or else if you are a subscriber, you could use our title checking & reporting tool which you can select from the virtual conveyancer menu on the left.

The property is a “freehold flat”. Flats are normally “leasehold” which means that rather than owning the property outright, you would have a long tenancy (usually starting at 99 or perhaps 999 years) after which the property would revert to the freeholder. At first, it might seem that owning the freehold would be better than owning a leasehold interest as it would mean that you wouldn’t have the issue of a diminishing lease term and it is true that that is an advantage, however the problem is that where your property is a flat in a block, as well as looking after you own property you are dependent on the owners of the other flats and shared parts of the development looking after their properties to ensure that yours is protected from nuisance and damage and that any shared areas remain in good condition. For example, the whole of the building needs to be insured against fire or flood or subsidence and you need to make sure the roof and foundations are maintained and if necessary, repaired.

Where the flats in the block are let on long leases, those leases will contain obligations, called covenants, by the leaseholders, in favour of the freeholder, or landlord, to maintain their properties and to contribute financially to the upkeep and insurance of the shared parts of the building and the development. In return the landlord will covenant to carry our repairs, insure the building and enforce the obligations against other flat owners if necessary. Covenants contained in leases are binding on the leaseholder/landlord for the time being, so if a flat is sold the purchaser is automatically obliged to comply. Likewise if the freehold is sold by the landlord, the new landlord is bound. Where either a leaseholder or landlord fails to comply with the covenants in the lease there are powerful remedies available – a leaseholder may lose the property altogether and a landlord may be forced to pay compensation or to sell the freehold.

In contrast, positive covenants (that is to say, covenants to do something such as repair or contribute to the cost of repairs) not contained in leases are not enforceable against future owners, so as the flats are sold by the original owners the new owners are not bound by any of the original covenants.

INSERT IF NO POSITIVE COVENANTS EXIST:

[In this case there are no positive covenants by the flat owners. Each flat owner therefore must rely entirely on the goodwill of the others to behave in a neighbourly manner, to insure their properties and to contribute to the cost should any repairs be required.]

ELSE INSERT IF THERE ARE POSITIVE COVENANTS BUT NO RESTRICTIONS:

[Although there is an arrangement whereby each new flat owner is expected to enter into a deed of covenant with the other flat owners, there is no mechanism to enforce this. We would hope to see a restriction against the title to each property requiring each new owner to enter into a deed of covenant before being registered as the owner, but no such restrictions exist.]

ELSE INSERT IF THERE ARE POSITIVE COVENANTS AND RESTRICTIONS:

[In this case there is an arrangement in place whereby each incoming flat owner is required to enter into a set of positive covenants which mirror those you would expect to find in a lease and it is underpinned by restrictions on the title to each property which mean each new flat owner has to enter into the covenants before being registered as the owner. This is useful however should any flat owner default, the only way to force them to comply would be through litigation, i.e. the other flat owners would have to sue.

Litigation can be expensive (with no guarantee of recovering legal cost) and there is a risk that it will fail. In a traditional landlord/tenant arrangement the landlord would not have to rely on litigation and could instead exercise (or threaten) forfeiture, where the lease comes to a premature end and the property reverts to the landlord, who can sell it to recover loss There is no equivalent to this very powerful deterrent in a freehold flat setting, so that whilst the positive covenants are enforceable in this block in principle, the practical reality may be quite different.]

The problem of being unable to enforce positive covenants is considered so serious that none of the major high street mortgage lenders will lend on freehold flats. This not only means that you would likely never be able to mortgage this property but also that you may have difficulty selling it and the fact that you would be limited to cash buyers would likely have a negative impact on value.

In summary, the property you are proposing to buy would not be considered suitable security for most mortgage lenders and would have a limited resale market which could adversely affect value especially in a slow property market. If you choose to proceed, I recommend that before you do, you advise your valuer (assuming you have had a professional valuation) that the property is a freehold flat with no scheme of enforceable covenants and ask whether that affects the original valuation.

Part of the Building is Missing from the Title

What does this mean?

A flying freehold occurs when part of a building projects into the airspace of an adjoining title but the projecting part is within the main property title. Sometimes, the projecting part will not be within the title. You can differentiate by looking for an entry that says that only the ground / first floor etc of the part tinted blue is included in the title. If you know that part of the property projects beyond the red line boundary on the title plan but that part is not tinted blue on the plan, you know that it is excluded from the title. There are two ways to identify this issue. If you look at the plan, it will usually show the footprint of the buildings. If part of the footprint extends beyond the boundary, you will need your client to check the position on the ground as the plan will not always reflect the current positions of the buildings.

Even if the plan does not give an indication, a surveyor's report, if there is one, will often in these situations suggest there is a possible flying freehold (the surveyor is only looking at the position on the ground and not the register and plan). If the survey/valuation suggests a flying freehold but the tite does not then it is likely that part of the property is excluded.

What are the issues?

Put simply, the property owner does not own the whole of the house and could, in theory at least, be excluded from the part beyond the boundary (or else the neighbour who owns that portion of land could choose to demolish the encroaching portion, with fairly catastrophic consequences for the property as a whole). Beyond these extremes, where only the upper or lower floor protrudes, for example because the buildings interlock, there will be a lack of support/shelter for that part of the property, no right of access to maintain and no covenant by the neighbour to maintain, repair and insure.

What are the remedies?

Transfer of Part - The missing land should if possible be transferred to the owner of the main property by way of a transfer of part (TP1). This will result in a separate title being created just for the missing land. This can potentially be merged into the main title, but it is not essential. What goes into the TP1 in terms of rights, covenants etc depends on the specifics. If the whole elevation extends across the boundary (i.e. the ground floor, first floor and roof as opposed to just one of the floors) and if it is not physically connected to a neighbouring building then no additional provisions will be required. If it is the whole of the elevation but it is connected to another building then a right of support and of access for repair should be included. Finally, if it interlocks with an adjoining building so that only the first floor and roof / ground floor and foundations needs to be transferred, thus creating a flying freehold, then rights of support and shelter and access for maintenance and covenants to maintain, repair and insure will be needed as well as restrictions against each title - see the flying freehold section for more details.
Adverse Possession - If the land is unregistered and the owner is unknown or else if a transfer of part is not possible for some other reason, it may be possible to acquire title to the land by way of adverse possession. That would require a statement of truth or statutory declaration being produced by the seller, or the seller together with a previous owner, confirming they have occupied the land without objection as though they are the owner for at least 10 years (if the land is registered) or 12 years if it is unregistered. To acquire title to land by way of adverse possession the applicant must show that they have, for the requisite time period, had both actual possession of the land and an intention to possess. That would be quite straightforward in a case such as this. Actual possession means being in control of the land enclosing it so as to exclude the world at large. So simply occupying the house (or letting it to tenants and receiving rents) shows that. Intention to possess means treating the land as though it is your own, so not paying rent or seeking consent to be there. If the land you are claiming title to is unregistered, the application should proceed smoothly. If it is registered however, the registered proprietor will be given the opportunity to object and if they do so, the application will be cancelled. The proprietor does not need to have reasonable grounds to object (there are limited exceptions here, but that is for another discussion). If title is acquired via this route and the buildings interlock it will be necessary to enter into a deed of easement and covenant to cover rights of support and access for repair, covenants to maintain and insure etc or else to obtain a flying freehold indemnity insurance property.
Application to Determine the Boundary / Boundary Agreement - The boundaries on the land registry filed plan are general boundaries only and are not intended to be definitive. It is sometimes possible therefore to correct minor discrepancies by way of an agreement with the neighbour as to the exact boundary line. This can be filed at Land Registry so as to bind future owners (though it will not bind any existing lenders). An agreement cannot be used to transfer land therefore if there is any evidence, such as pre-registration title deeds or contradictory boundary features, which suggest that the boundary the two neighbours have agreed upon is not correct, then the agreement will not be valid and will have no effect. An application to determine the boundary operates in a similar way and has the same limitations (i.e. it is not appropriate where there is evidence that shows the claimed boundary is inaccurate) except that there will be no agreement between the two owners and if successful HM Land Registry will redraw the boundary on the title plan and note the register to say that the boundary has been determined. Neither of these options creates any necessary covenants and easements and both depend on both properties being registered land.

In this situation a seller's conveyancer will sometimes seek to rely on the "general boundaries rule" to argue that the title is fine and nothing needs to be done. They are referring to s60 Land Registration Act 2002, but all this actually says is that the boundary shown on the title plan is a general boundary and does not determine the exact line. Whilst this means it is not definitive evidence, it does not mean that the boundary is flexible and can be assumed to be in the position that happens to be most convenient. If there is evidence, for example from the transfer deed which created the title, that suggests the title plan is accurate then s60 LRA 2002 cannot be used to rebut that. Even if no other evidence is available it is much safer enter into an agreement or ask for the boundary to be determined. The general boundaries rule is not a tool that can be used to correct a mistake in the drafting of the original conveyance. If the title plan reflects what the original parties agreed then it is accurate even if that has produced a result that appears unintended.

A typical arrangement involves two properties joined at first floor level, creating a covered passage between the two at ground floor level, where the physical boundary runs down the centre of the passage but the whole of it is included in the title to one of the properties, or where the whole of the room over the passage is part of one property but the legal boundary runs down the centre. In either case, a tell-tale sign that the title plan is correct (and that there is therefore a title issue) is where the title grants a right of way over the passage or part of the passage for the benefit of the property that should own that part.

This sample letter re part of building missing from title may assist when raising the matter with the seller's solicitors. You will need to delete any sections that are not relevant. Alternatively, if you are a paid subscriber you could download our Letter Generator app which includes a built in template.

What advice can I provide to my client?

The practical risk (of being excluded from the part of the property in question) is low. It would be hard for the neighbour to convince a judge that the owner should be "evicted" from that part or that an injunction for the removal of the structure should be granted and there would be no obvious benefit to the neighbour resulting from such action. It is however likely to cause complications in the event of a sale or remortgage - some buyers and lenders will not accept the title as it is, and there are options to correct the position that can, usually, be realistically achieved so they should be pursued quite vigorously.

If the issue cannot be resolved, your advice to the client should be along the lines of "Part of the property, which we have highlighted in blue on the attached plan, is not within the seller's title. It will therefore not be included in the sale to you and you will not own it. The seller does currently use and occupy that part of the property and the risk of you being prevented from doing so is small. The neighbour, who does own it, would have to seek a court order to "evict" you from the land and/or an injunction for the part of the building that encroaches to be demolished. There is no obvious significant benefit to the neighbour in taking that action (which may be very expensive) and it is unlikely a judge would grant such a order. Nonetheless it is the type of issue that may well be a concern to future potential purchasers, or mortgage lenders, when you want to remortgage or sell the property who may be put off by it. In addition, you do not have the benefit of a right of support from the adjoining property or of access to it to repair yours and there is no obligation on the neighbour to maintain or insure their property for the protection of yours. One or more the following remedies are generally available in these circumstances:

transfer of the affected part from the neighbour to the seller;
a boundary agreement;
an application to determine the boundary; or
an adverse possession application

IF THE SELLERS REFUSED TO EXPLORE THESE OPTIONS THEN:

We have suggested the relevant remedies to the sellers solicitors however their client was not prepared to approach the neighbour or make any application.

Transfer from the Neighbour

This would involve the neighbour entering into a transfer deed, called a TP1, to transfer ownership of the part of the property that is in their title to the owner of this property. IF THE SELLER WAS NOT PREPARED TO APPROACH THE NEIGHBOUR The seller was not prepared to approach the neighbour about this. You could consider doing so after completion. ELSE IF THE NEIGHBOUR REFUSED TO ENGAGE The neighbour was not prepared to assist with this. ELSE IF THE NEIGHBOUR'S PROEPRTY IS MORTGAGED The neighbour's property is mortgaged and this would have required the lender's consent. You could consider approaching the neighbour in future if the property goes on the market for sale. ELSE IF THE NEIGHBOURING LAND IS UNREGISTERED AND THE OWNER IS UNKNOWN A transfer is not currently possible in this case as the neighbouring land is unregistered and the identity of the owner is unknown.

Boundary Agreement

This is an agreement between the owner of this property and the neighbour under which the parties agreed that the actual legal boundary is not exactly where it appears to be on the title plan so that in fact the whole of this property is included within the title. This can sometimes work because the H M Land Registry title plan is not definitive (as confirmed by s60 Land Registration Act 2002) so that where the situation on the ground suggests that the boundary is in a slightly different position the parties can agree that that is where it should be. IF THE SELLER WAS NOT PREPARED TO APPROACH THE NEIGHBOUR The seller was not prepared to approach the neighbour about this. You could consider doing so after completion. ELSE IF THE NEIGHBOUR REFUSED TO ENGAGE The neighbour was not prepared to assist with this. ELSE IF THERE IS EVIDENCE TO COUNTER THE SUGGESTION THAT THE TITLE PLAN IS INCORRECT Where there is evidence, for example in the old title deeds, that suggests that the title plan is in fact correct then a boundary agreement cannot be used because the parties cannot use such an agreement to transfer land. There is such evidence in this case.

Application to Determine the Boundary

This involves applying to H M Land Registry to update the title plan to show a definitive boundary. If successful the general boundary rule does not apply and the title plan is deemed to be accurate. It can be used to adjust the plan so as to include the offending part of the property within the title. IF THE SELLER WAS NOT PREPARED TO TRY THIS The seller was not prepared to attempt to do this. you may wish to try following completion. ELSE IF THE NEIGHBOURING LAND IS UNREGISTERED In order to make this type of application both properties have to be registered land. The neighbouring land is currently unregistered therefore it was not possible. ELSE IF THERE IS INSUFFICIENT EVIDENCE TO SUPPORT AN APPLICATION In this case there is insufficient evidence to provide to H M Land Registry to support an application to determine the boundary. ELSE IF AN APPLICATION WAS MADE AND REJECTED Th seller made an application but it was not successful.

Adverse Possession Application

If a person has been in occupation of some land for a long period of time they can in some circumstances apply to Land Registry be registered as the owner based on "adverse possession". If successful they will be registered with "possessory title". This is the lowest class of ownership, but they will still own the land. In order to apply the applicant must be able to show that they or they together with a previous occupier have been in continuous occupation for at least 10 years (if the land they are claiming is registered) or 12 years (if it is unregistered). IF THE SELLER WAS NOT PRPEARED TO APPLY BUT DID PROVIDE A STAT DEC OR STATEMENT OF TRUTH COVERING THE REQUISITE PERIOD The seller was not prepared to make the application but will provide a statement confirming they have occupied the land for the requisite period so you could attempt to do so following completion. ELSE IF THE SELLER WAS NOT PREPARED TO APPLY AND WOULD NOT PROVIDE A STAT DEC / STATEMENT OF TRUTH The seller was not prepared to make the application and would not provide a statement confirming they have occupied the land. You could apply after completion but not until you have owned the property fo the requisite period. ELSE IF THE SELLER HAS NOT OWNED THE PROPERTY FOR THE REQUISITE PERIOD BUT HAS PROVIDED A STAT DEC / STATEMENT OF TRUTH The seller has not owned the property for long enough to apply for adverse possession but will supply a statement confirming their period of occupation so that, once you and the seller between you have owned the property for the requisite period you could make an application.

IF THE LAND IS REGISTERED The requisite period of occupation is 10 years. As the land is registered, the neighbour will be informed of your application and may object and if they do it is highly likely your application will be rejected. They do not have to have any grounds to object. ELSE IF THE LAND IS UNREGISTERED The requisite period is 12 years."

If the issue is successfully resolved then you should explain how it was resolved. Your advice might be along the lines of: "Part of the property, which we have highlighted in blue on the attached plan, was not within the seller's title. The seller does currently use and occupy that part of the property and the risk of you being prevented from doing so would have been small as the neighbour, who did own it, would have had to seek a court order to "evict" you from the land and/or an injunction for the part of the building that encroaches to be demolished. There is no obvious significant benefit to the neighbour in taking that action (which may be very expensive) and it is unlikely a judge would have granted such an order. Nonetheless it is the type of issue that is often a concern to future potential purchasers, or mortgage lenders, therefore we have negotiated with the seller to take steps to correct the position as a result of which IF THE SELLER IS ACQUIRING THE LAND VIA A TRANSFER OF PART the seller has arranged that the part of the land in question will be transferred to them by the neighbour. It will then be transferred to you together with the title to the main property. This will mean you will have two separate titles with their own title numbers. You should make sure you tell your conveyancer about this when you want to mortgage or sell the property in future. {IF THIS CREATES A FLYING FREEHOLD INCLUDE THE APPROPRIATE FLYING FREEHOLD ADVICE - SEE ABOVE} ELSE IF THE SELLER HAS ENTERED INTO A BOUNDARY AGREEMENT the seller has entered into a "boundary agreement" with the neighbour which will be registered at H M Land Registry. It confirms that both property owners agree that the boundary is actually positioned so as to include the part of the building that was missing within the title to the property you are buying rather than where it is according to the title plan. This works because the title plan boundary is not meant to be definitive as confirmed by s60 Land Registration Act 2002. {IF THE NEIGHBOUR'S LAND IS MORTGAGED} You should bear in mind that this agreement will not bind the neighbour's mortgage lender and so if the neighbour's property is repossessed and sold it would not bind the new owner. ELSE IF THE SELLER HAS SUCCESSFULLY APPLIED TO DETERMINE THE BOUNDARY the seller has completed an application to Land Registry to determine the boundary of the property. Determining the boundary means that the title plan is definitive proof of the position of the boundary line. The title plan has therefore been updated to shown that the previously missing land is included. ELSE IF THE SELLER HAS SUCCESSFULLY MADE AN ADVERSE POSSESSION APPLICATION the seller has obtained title to the missing land by way of adverse possession and is now registered as the owner of it. You will therefore own two titles following completion, one for the main property and one for the missing land. The missing land will be registered with "possessory title". This is the lowest class of title but you will still own it."

Tyneside Leases

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Mines and Minerals

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Prescriptive Easements

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Freehold Covenants

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