where do we stand legally

[christine gavin]

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?.......

[JustinN]

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

[christine gavin]

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.

[JustinN]

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

[john.harvey30@tesco.net]

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

[JustinN]

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

[christine gavin]

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.

[JustinN]

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!

[christine gavin]

Crikey...wont be doing that then....thanks justin