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 title 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."
