A flying freehold is a freehold property where a section of that property overhangs, extends, or protrudes onto another freehold property or land. This can include:
- An upper-level bedroom which extends over a shared archway
- A balcony that protrudes over someone else’s land,
- Properties that rely on the support of another property such as those on steep hills,
- A multi-story building that has been divided but the configuration of the rooms prevents a completely vertical division.
Flying freeholds are usually found with older buildings, developed in times with very different conveyancing practices to now. These days, conveyancers ensure that properties in England and Wales have a completely vertical division. Why? Because flying freeholds not only depend on another property in order to maintain its stability and structure, they also may demand access to that neighbouring property in order for essential repairs and maintenance to be carried out. The problem is that flying freeholds rarely benefit from adequate rights of support, rights of shelter, and rights of access.
Rights of support and rights of shelter
Without specific rights of support from the property beneath the flying freehold or rights to shelter from the property above, the owners of those properties could technically demolish their adjacent or subjacent buildings without any consideration for the flying freehold. This could severely compromise the structure of the flying freehold. Likewise, if these neighbouring properties were not obligated to repair and maintain the structure on which the flying freehold relies, structural problems could arise.
Rights of access
When a flying freehold requires repairs, such as to a balcony overhanging a neighbour’s property, you may need to gain access to the neighbouring property in order for the works to be carried out. Without rights to access, consent from the land/property owner would need to be obtained. Of course, this person is perfectly within their rights to deny access or even to charge a premium for access. This can therefore inhibit the flying freeholder’s ability to suitably maintain their property.
How do I know if a flying freehold has these rights?
You will need to carefully read the title deed for the flying freehold to discover whether you have rights of support, rights of shelter, and rights of access. The title deed will also provide you with a range of other rights and responsibilities that are the legal obligation of the freeholder. It is advisable to employ the services of a property law solicitor to read and assess the title deed if you are at all unsure about any of the terms.
Why doesn’t my flying freehold have these rights in the title deed?
The most common reason for not having the above rights written into the title deed is because the original conveyancers did not consider the need for such rights. However, it is also possible that the obligations have been lost over time as a result of technical legalities in relation to positive covenants. In respect of property, covenants, which can be either positive or restrictive, are used to describe conditions tied to the land.
Positive Covenants require a form of expenditure, for example, paying maintenance costs for a shared driveway. However, at present, English law does not generally permit such obligations to ‘run with the land’ and bind successive owners. Therefore, in order to maintain a positive covenant, each new purchaser would need to enter into a deed of covenant to observe and perform the positive obligation.
What happens if my flying freehold doesn’t have these rights?
There are several actions you can take if you find that your flying freehold does not benefit from rights of support, shelter, or access. These include purchasing indemnity insurance, entering into a Deed of Covenant, converting the building to leasehold, or using the Access to Neighbouring Land Act 1992.
Flying Freehold Indemnity insurance
Flying freehold indemnity insurance is widely available for a few hundred pounds and will provide cover for the inability to force your neighbour to repair for the support and protection of your property. This includes where the adjoining premises are uninsured or inadequately insured. In many cases, this type of insurance policy is recognised as providing adequate cover for a mortgage lender’s interest. Thus, they are more likely to grant a mortgage on a flying freehold when indemnity insurance has been put in place. However, mortgage companies have differing views on lending on flying freeholds, so it is advisable to have this confirmed ahead of any agreement to purchase.
Deed of Covenant to vary title deeds
Entering into a Deed of Covenant to vary the title deeds of your property is the ideal solution for a flying freehold. This would allow you to ensure that the property benefits from the correct rights and covenants and that the owners of each adjoining or subjacent property will always be bound by mutual obligations. However, any such alterations would need to be mutually agreed with your neighbour before they can be added and registered on the deeds for both properties. It can also be a lengthy and expensive process, but well worth it if you can see it to fruition.
Conversion to leasehold structure
This might not be everyone’s cup of tea; however, it does provide a good solution for overcoming the potential challenges found with a flying freehold. By converting the flying freehold to leasehold, the necessary rights and covenants can be added to the new, long lease of up to 999 years. Furthermore, the terms of the lease would transfer to any new owner of the leasehold interest. The downside is that the original freehold title would be transferred to one of the existing owners of either property. Consequently, the leaseholder could be left with a diminishing asset and in theory fewer rights over their property. This solution can also be a lengthy procedure to complete.
Access to Neighbouring Land Act 2002
Under the Neighbouring Land Act 2002, property owners are given the right to access neighbouring land in order to carry out repairs to their own property. However, the 1992 Act does not enable a property owner to carry out works to their neighbour’s property. If such repairs are required, it may be possible to obtain a court order under the 1992 Act. As a prerequisite of the order, the court may request the person carrying out the work to indemnify the other owner against any loss, damage or injury.
As with most legal proceedings, there are costs and uncertainties involved. Furthermore, if the neighbouring property is unregistered land and the identity of the owner is unknown, it could make the process of obtaining a court order very difficult. Therefore, it is strongly advised to not rely on this solution when considering the purchase of a flying freehold.
Are there any proposals for reform?
The Law Commission has made recommendations for reform in their report; ‘Making Land Work: Easements, Covenants, and Profits á Prendre’. As a result, the Ministry of Justice is in the process of preparing a draft Law of Property Bill, with the aim of making it easier to create long term arrangements for the enforcement of freehold positive covenants against successors in title.[1] While we’re uncertain as to what this ‘Bill’ will specifically entail, the Law Commission made the following recommendations:
For the owner of an estate in land to be able to create positive and negative obligations that will be able to take effect (subject to the formal requirements for the creation of legal interests) as legal interest appurtenant to another estate in land, and therefore as registrable interests pursuant to the Land Registration Act 2002, provided that:
- the benefit of the obligation touches and concerns the benefited land;
- the obligation is either:
- an obligation not to do something on the burdened land;
- an obligation to do something on the burdened land or on the boundary (or any structure or feature that is treated as marking or lying on the boundary) of the burdened and benefited land; or
- an obligation to make a payment in return for the performance of an obligation of the kind mentioned in paragraph b above; and
- the obligation is not made between lessor and lessee and relating to the demised premises.
Covenants made by the owner of an estate in land (that satisfy the conditions set out above) should take effect not as promises and not in accordance with the current law relating to restrictive covenants, but as legal interests in the burdened land, appurtenant to the benefited estate in land.
Can you get a mortgage on a flying freehold?
Yes, it’s entirely possible to get a mortgage on a flying freehold. Though, as stated earlier, mortgage lenders view flying freeholds differently. While some may rule out lending on a flying freehold entirely, others may lend so long as there is a suitable indemnity insurance policy, or if the flying freehold does not exceed a pre-determined percentage of the floor area of the building (usually 15%).
How are flying freeholds valued?
Having a flying freehold doesn’t necessarily mean that the value of the freehold interest will be affected in any way. Therefore, it is possible to obtain an approximate value of a flying freehold using our simple freehold calculator. Nevertheless, it is strongly advisable to seek advice from a conveyancer before agreeing to purchase a flying freehold (or any other property for that matter).
Is a flying freehold a problem?
In many cases flying freeholders do not experience any problems. Problems typically only arise when a flying freehold building requires repairs and provisions for rights of access, shelter, or support are not contained in the title deeds. Although it may be possible to find a way around such problems using the proposed solutions above, the decision to purchase a flying freehold should be taken cautiously.
Final thoughts
When purchasing a flying freehold, it is wise to ensure that both properties are under an obligation to each other to maintain and insure their part of the property. Additionally, that if works need to be carried out, you have a way of forcing an unwilling neighbour to contribute and assist. Lastly, it is crucial to employ the services of a property law solicitor and/or a conveyancer to inspect the property and title deeds. They will then be able to competently advise you of your rights and responsibilities and any risks concerning future saleability or potential decreases in value.
[1] Green, S. (September 2019) seddons.co.uk https://www.seddons.co.uk/our-thinking/enforcement-freehold-positive-covenants-against-successors-title
