Whilst most property owners or buyers have never heard of a flying freehold, they are relatively common in older properties.

What is a Flying Freehold?

A flying freehold occurs when part of a property extends over, or under, a part of a neighbouring property but you still own it outright.

This is unusual because generally, ownership of freehold property includes all the airspace above and all the land beneath, subject to legal limitations. As a result, neighbouring freehold properties would ordinarily expect to have separate non-overlapping boundaries.

Common examples include:

• A room or other part of a property extending over a neighbouring property
• Archways
• Part of a property above a passageway in a row of houses or above an accessway which leads to a car parking area

It is not usually obvious from the title deeds whether a property is affected by a flying freehold and therefore, it is important that the buyer inspects the property thoroughly during the conveyancing process. If you believe that the property you are buying has an area which has a flying freehold element, you should notify your conveyancer as soon as possible to allow them to investigate this further.

When can a Flying Freehold be a problem?

Flying freeholds can be problematic if certain rights and arrangements are not in place.

In particular, there can be issues concerning responsibility for maintaining, repairing or insuring the relevant parts of the building.

This means that it is important to establish whether the title to the property contains appropriate rights and arrangements.

What will your conveyancer be looking for?

As part of the conveyancing process, your conveyancer will consider whether there are adequate provisions dealing with:

Access:

Ensuring rights to access neighbouring land or property to exist. Specifically to allow you to inspect, maintain or repair your property.

Support:

Checking that appropriate rights of support are in place. For example, where part of the property that you are purchasing extends over another, it is important that it benefits from the right of support from the land or property underneath.

Repair and maintenance:

Assessing whether the legal documentation clearly establishes who is responsible for repairing and maintaining any overlapping structures.

Enforcement:

Ensuring that any rights and obligations which exist are capable of being enforced against the relevant neighbouring property. This is important as, if a neighbour is unwilling to comply with their obligations, or permit access for you to comply with yours, your property may suffer damages and/or loss of value.

Insurance:

Checking whether there are adequate arrangements in place to ensure that the relevant parts of the building are properly insured. Where a flying freehold exists, damage to one property may affect the structural integrity of another. It is therefore important that all affected parts of the building are maintained with appropriate buildings insurance and policies are kept in force.

Without these rights, resolving disputes or carrying out repairs can become difficult and costly to remedy.

Is a Flying Freehold an issue?

Not always. Many properties with flying freeholds are bought and sold without significant problems.

The question is whether the legal title provides sufficient rights and protection.

Your conveyancer will review the title to the property and any associated documentation to establish what rights exist. If appropriate rights are already in place, the sale/purchase may proceed without any issues.

However, if the title does not contain adequate rights or concerns are raised regarding how the properties are maintained or insured, then additional work may be required for the sale/purchase to proceed.

Could a Flying Freehold affect my mortgage?

Requirements vary from lender to lender and your conveyancer will need to review these requirements carefully. Some lenders may be happy to proceed if existing rights and protections are adequate. Others may require additional protection, such as an indemnity policy, before proceeding.

In some cases, lenders may reconsider their valuation; the terms of their offer; or decide that they can no longer lend.

Your conveyancer will check your lender’s requirements when reviewing the legal documentation and will let you know if they need to report a flying freehold to your lender.

If a report is required, this can delay your sale/purchase.

What are the solutions if there is a problem?

If a flying freehold is identified and adequate right are not in place, you may have to regularise the position before proceeding.

Depending on the circumstances, this may include:-

• Entering into a “Deed of Easement” to provide or clarify the necessary rights and obligations;
• Obtaining an indemnity policy to protect against any future issues;
• Entering into a Maintenance Agreement with the neighbour to clarify your individual rights and responsibilities for repairing the properties.

Should I be worried about buying a property with a Flying Freehold?

A flying freehold does not automatically mean that you should not proceed with your purchase.

However, if appropriate rights and protections are not in place, proceeding is often limited to cash purchasers with a higher risk appetite.

If you have any questions or concerns about flying freeholds, then please get in touch with a member of our property team who will be happy to assist.