What is a flying freehold?
Flying freehold is a form of co-ownership: A larger property is divided into individual apartments, generally residential units, which as in any building in multiple occupation share certain areas (entry halls, stairways, lifts, gardens, yards, etc.) and services (drainage, electricity, etc.). The co-owners together form an incorporated association and abide by a declaration of co-ownership as registered in the Public Registry. This association takes decisions in a general assembly of the co-owners; it can act on their behalf, acquire and alienate property and rights, and litigate. A co-owner will have sole ownership of an individual unit and ownership in common of the common areas (the share or lot)
The procedure involved in purchasing flying freehold property
Review of draft contract of Sale
Parslows conveyancers will review the description of the property given in the draft contract of sale by the Vendor’s lawyer to ensure that it corresponds with the information provided in the Public Registry. We will check to ensure that all rights either over or for the benefit of the property are adequately set out in the draft contract of sale.
Review of the declaration of co-ownership and associated records
We will review the declaration of co-ownership. This document sets out the rules and obligations of the Association and the co-owners.
The declaration of co-ownership will detail your responsibility to maintain your flat and the contribution you will have to pay towards the Association’s expenditure. The Association will for example have a duty to insure the property as a whole and to maintain the structure of the property. You will be obligated to contribute to these expenses which are usually recovered by way of a service charge.
We will check the minutes of the association and request information from the association representative. This will be with a view to obtaining clarification as to levels of expenditure incurred by the Association, whether the co-owners are discussing any major expenditure and that appropriate insurance cover is in place.
The declaration of co-ownership contains details of the boundaries of the property, the rights and obligations of the association as owner of the land and buildings and any restrictions and rights affecting the property and its title.
Accordingly Parslows conveyancers will check title to the association property. This involves checking all transactions conducted by the Vendor and his predecessors in title for a minimum period of 40 years. Title research is now usually conducted online using the PRIDE system. The title to neighbouring properties will also be looked at to ensure that the boundaries they claim towards the property to be purchased and rights set out in those properties’ deeds again correspond with the information set out. The main aim of such exercise is to ensure that the association (and therefore the Vendor) has a good unencumbered marketable title to the property free from any outstanding claims. It should be noted that a title check will not reveal the existence of certain rights such as the rights of widowers or widow. In these circumstances we have to rely on information received from the Vendors lawyer.
We send out search letters to the various agencies who may be able to provide information in respect of the property. Search letters are commonly sent to Planning, Transport and Technical Services, the relevant parish, Jersey Electricity, Jersey Water and depending on the property, Jersey Gas, Rent Control Tribunal and Public Health.
It is drawn to your attention that all agencies now put disclaimers on the accuracy of information they provide. The Purchaser’s lawyer is therefore not liable if the information provided is incorrect.
As soon as possible after title has been checked and the search letter replies have been reviewed, Parslows conveyancers will attend on site. The purpose of the site visit is to ensure that the Vendor’s draft sale contract corresponds with the circumstances on site. We will thereafter draw to your attention any defects and or issues. In some circumstances it may be necessary to request that any such defects be dealt with by the Vendor or a neighbour or to obtain defective title insurance cover.
In order to buy and sell property in Jersey you must hold a valid registration card providing entitlement to purchase.
In circumstances where you require a mortgage, your mortgage advisor will assist you with the application for a mortgage. If and when your mortgage is approved it is essential that you sign the facility agreement and return to the bank as soon as possible to avoid delays. A satisfactory survey and valuation is likely to be a condition of any loan.
Thereafter Parslows can advise you on the legal implications of entering into the bank’s security documents, for example what will happen if you do not keep up your mortgage repayments.
Please note that if a balance of funds is to be paid to make up the difference in the price payable for the property you must make sure that it is with us by the Thursday immediately prior to the passing of the contract.
Other issues you need to be aware of …
Survey and valuation
Please take note that while your bank will request a survey and a valuation, this is to ensure that its loan to you is safeguarded. This is not necessarily comprehensive and you should consider carefully the benefit of instructing a surveyor to carry out a full survey. The contract of sale will contain what is called a vice cache clause. This in essence means that all hidden or apparent defects are your responsibility once you have purchased. If you don’t have a survey any defects found after you buy they will be your responsibility.
If you have agreed to buy contents from the Vendor, it is essential that these are listed in an inventory and this should be drawn up by the estate agent as soon as possible after the offer has been accepted so that no nasty surprises or last minute price reductions arise on the eve of completion. Both parties should review the inventory to ensure that they are receiving (or selling) all the contents that they understood were part of the deal.
Stamp duty is a duty levied by the Treasurer of the States and is applicable to every contract which is passed before the court. Stamp duty is payable by the buyer. Stamp duty is calculated by reference to the purchase price and is also payable in respect of any mortgages or loans to be secured against the property.
Wholly residential property is free from Goods and Services Tax. If the property which you are buying does not fall within that category there may be GST payable.
Utilities and insurance
You will need to ensure that all utility accounts are transferred into your name in readiness for the day of completion. It is usual for a buyer to communicate with the Vendor directly to ensure the smooth transfer of the various services supplied to the property and that no service is unnecessarily disconnected. It should be noted that while buildings insurance will be taken out in the name of the association you will be responsible for contents insurance
Your contract of sale will provide for the apportioning of the parish rates and other periodic payments between the vendor and purchaser.
The big day … buying your new home
Passing of the contract
Once we have completed our review of the property, met with you and returned the loan documentation you should be ready to purchase the property.
To buy flying freehold property in Jersey, you do not sign a contract; instead, it is passed in the Royal Court and you or your attorney will attend court on a Friday afternoon to swear an oath to abide by the terms of the contract.
Attendance in court
If you so wish, you may attend court in person. Alternatively, you can, by power of attorney, appoint someone else to attend on your behalf. If you attend court personally, you must wear formal attire. Failure to dress appropriately may result in the court refusing to pass the contract.
Procedure in court
The procedure in court is that you should wait until your name is called and then stand up. You will be asked if you understand the contents of the deed (i.e. the contract). You will be asked to raise your right hand, and to swear an oath that you will be bound by the terms of the contract and will not act against those terms. A copy of the contract will be retained in the Public Registry and will constitute evidence of your title to the property.
Once the contract has passed before the court, you will be able to collect the keys to the property from the estate agent.
How Parslows can help?
Parslows conveyancing and property team provide an exceptional service to all our clients, whether you are a first time buyer or some way up the property ladder.
Our conveyancers and property lawyers are focused on providing you with expert residential conveyancing advice with a truly personal service.
We advise on all aspects of property law: whether it be advice on private loans, financing, off plan and building contracts or option agreements, landlord and tenant advice or regulatory advice we can assist.
Our clients are pleased with our service and fees, we are confident you will too.
For further information or a fixed fee for your conveyancing work please do not hesitate to email us at firstname.lastname@example.org or call 630530;
The information and opinion expressed in this briefing does not purport to be definitive or comprehensive and are not intended to provide professional advice. For specific advice, please contact Parslows, We are not responsible for, and do not accept any responsibility or liability in connection with, the content of this document or any reliance upon it.