If a flying freehold has come up in your property transaction, here is what it means, why it matters, and how we deal with it on your behalf.
The basics: what is a flying freehold?
A flying freehold arises when part of a freehold property sits above or below land that belongs to someone else. The part that overhangs or sits beneath a neighbour's property is said to "fly" over land the owner does not own.
Common examples include a room above a shared passageway, a bedroom that projects over a neighbour's hallway, or the upper floor of a terraced house that extends beyond the boundary of its own plot. Older properties, particularly Victorian and Edwardian terraces and town-centre buildings, are the most likely candidates, though flying freeholds can appear in almost any era of construction.
The arrangement is not in itself illegal or unusual. Many perfectly well-maintained properties have a flying freehold element. The issue, as we explain below, is that English and Welsh land law does not make it straightforward to enforce the obligations that keep the structure sound and the relationship between neighbours workable.
Why lenders and buyers ask questions about them
When a mortgage lender reviews a property, it is thinking about what would happen if it ever needed to sell that property in the future. A flying freehold raises a practical concern: if the neighbour fails to maintain the part of the building that supports or protects your section, what can you do about it?
In a leasehold building, the lease normally contains repairing covenants that are enforceable between the parties. A freehold title does not automatically carry the same protection. Positive obligations (meaning obligations to do something, such as repair a shared wall or roof) generally do not bind successors in title under English and Welsh law in the way that restrictive covenants can. That means a future owner of the neighbouring property may not be legally bound to carry out work that protects your home.
For a buyer, this translates into a worry about maintenance and cost. For a lender, it translates into a concern about the security of its loan. Some lenders will not lend where there is a flying freehold. Others will, but only if the flying part is a small share of the total floor area and the title has the right protections, such as rights of support, shelter and access, or suitable indemnity insurance.
Buyers without a mortgage are not immune from the issue either. A flying freehold can affect resale value and future mortgage-ability, so it is important to understand what you are buying before you exchange contracts.
How we check the title when a flying freehold is involved
As part of our standard conveyancing process, we examine the title documents and raise enquiries with the seller's solicitors. When we spot a flying freehold, or when the seller discloses one, our team carries out a more detailed review that covers the following.
- The title plan and register. We look at the title register, the title plan and the older deeds to work out which part of the property is the flying freehold and what sits beneath or above it. Title plans show general boundaries only, so we may also ask for further plans or information.
- Existing rights and obligations. We check whether the title already contains easements, rights of support, rights of shelter and mutual repairing obligations between the affected titles. If those rights are properly documented and enforceable, the position is significantly more comfortable.
- Lender requirements. If you are purchasing with a mortgage, we review your lender's specific requirements for flying freeholds. Different lenders take different positions, and we will tell you clearly what your lender expects before you commit to the purchase.
- Indemnity insurance. Where the title lacks adequate protection, indemnity insurance is often the practical solution. We will advise you on whether a policy is appropriate, obtain quotes on your behalf and ensure the policy terms actually cover the risk in question.
- Deed of easement or covenant. In some cases, the better long-term answer is a deed between the neighbouring owners granting rights of support, shelter and access for repairs, which can be registered against both titles. Repair obligations need extra steps so that they pass to future owners, and we will explain the options.
If you are selling a property with a flying freehold
Selling a property that includes a flying freehold requires some advance preparation, and the earlier you involve us, the smoother the process tends to be.
We will ask you to gather any documents you hold relating to the flying freehold, including any indemnity insurance policies taken out when you purchased. We will then review the title and prepare a clear explanation for the buyer's solicitors, which helps to prevent the matter from causing unnecessary delay once a buyer is found.
If the title already has good quality rights of support and mutual obligations in place, we can present that positively in the replies to enquiries. If it does not, we can look at arranging indemnity insurance before the property goes to market, which many buyers and lenders will accept, although each lender makes its own decision.
Being open and prepared on this point tends to build confidence rather than alarm. Many buyers, once they see the matter has been properly dealt with, are reassured.
Working with us on your transaction
Flying freeholds are one of those areas where having an experienced conveyancing team makes a real difference. The issues are not insurmountable, but they do need careful handling, and the right approach depends on the specific wording of the title, the attitude of your lender and the nature of the neighbouring property.
When you instruct Brewer Wallace, we review every title carefully and flag matters like this early in the process so that you have time to make informed decisions. We explain the options in plain terms, tell you the implications of each one and then get on with implementing whichever approach suits your situation best. We also liaise directly with the other side's solicitors and, where relevant, with your lender's legal team, so that you do not have to manage those conversations yourself.
If you have been told that the property you are buying or selling has a flying freehold, or if you are simply at the early stages of thinking about a move and want to understand your title before you instruct an estate agent, we are very happy to talk it through with you.
Get in touch with our conveyancing team today. Call our Hull office on 01482 228808.
Our local conveyancing teams: conveyancing solicitors in Hull, Bridlington, Hornsea and Beverley.