Flying Freehold

What Is a Flying Freehold?

Most property buyers are familiar with the terms freehold and leasehold, but a less common issue that can arise during a property transaction is a flying freehold.

A flying freehold exists where part of one freehold property extends over, or sometimes under, another person's freehold property. Despite the name, the property does not have to be literally "flying" or suspended in the air. It simply means that part of the building crosses the usual boundary line between two separately owned freehold properties.

Examples of a Flying Freehold

Flying freeholds are often found in older or closely built properties, particularly where buildings have been altered or divided over time. Common examples include:

• A room built above a shared passageway
• A bedroom or bathroom that extends over part of a neighbouring property
• A cellar or basement that runs underneath another property
• A balcony or overhanging structure that crosses the boundary line
• Terraced or semi-detached houses where the legal boundary does not run neatly from ground level to roof level
• Maisonettes or converted buildings where parts of one property sit above or below another freehold property

In many cases, owners may not even realise that their property includes a flying freehold until they come to sell, remortgage or investigate the title in more detail.

Why Can a Flying Freehold Cause Problems?

A flying freehold is not automatically a serious problem, but it can raise legal and practical issues.

The main concern is that one property may depend on another for support, shelter, access or repair. For example, if part of your property sits above your neighbour's passageway, you may need rights of access to inspect, maintain or repair that part of the building.

Difficulties can arise if the legal title does not clearly set out the necessary rights and obligations. This may include:

• Rights of support from the neighbouring property
• Rights of access to carry out repairs
• Rights of shelter or protection
• Responsibility for maintenance and repair
• Arrangements for shared structures or adjoining walls

A further issue is that positive covenants between freehold owners can be difficult to enforce. This means it may not always be straightforward to make a neighbouring freeholder contribute to repairs or comply with ongoing obligations.

Will a Flying Freehold Affect a Sale or Mortgage?

A flying freehold can sometimes make a sale or remortgage more complicated. Some mortgage lenders are cautious about flying freeholds, particularly if a large part of the property is affected or if the title does not contain adequate legal rights.

However, a flying freehold does not necessarily mean that a transaction cannot proceed. Much will depend on the size and nature of the flying freehold, the wording of the title documents, the lender's requirements and whether any additional protection is needed.

In some cases, a solicitor may recommend an indemnity insurance policy. In other cases, the buyer or lender may require further investigation, additional rights to be granted, or confirmation that the existing title is acceptable.

What Should You Do If a Flying Freehold Is Found?

If a flying freehold is identified during a property transaction, it is important not to ignore it. A conveyancing solicitor should review the title carefully and check whether the property has the rights needed for support, access, maintenance and repair.

The key question is not simply whether a flying freehold exists, but whether the legal title gives the owner sufficient protection.

Legal Advice on Flying Freeholds

Flying freeholds are often manageable, but they need to be considered properly before contracts are exchanged. Buyers, sellers and mortgage applicants should take legal advice so that any risks are identified early and dealt with correctly.

Understanding the issue at the start of the transaction can help avoid delays, lender concerns or unexpected problems after completion.