What is a flying freehold?

What is a flying freehold?

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What is a flying freehold?

Freehold land typically encompasses all the land below and above it (divided vertically), which in practice means that standard freeholds do not cross or overlap. Flying freeholds provide an exception to this rule. A flying freehold is a freehold property which overhangs or projects (flies) above or below an adjoining freehold property.

Natalie Tinson Paralegal natalie.tinson@laytons.com +44 (0)1483 407 015

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Laytons LLP | What is a flying freehold?

Flying freeholds are not always obvious from the title deeds, and so it is good practice for prospective purchasers to inspect the property visibly for any tell-tale signs. It is worth noting that a surveyor will also commonly look out for any potential signs of a flying freehold.

Should you have any concerns, always alert your conveyancer in the first instance.

Why are flying freeholds a problem?

Wherever a flying freehold is encountered it is essential that there are easements (rights) of support and protection as between the adjoining freehold owners together with a right of entry on to the adjoining property for repair.

However, rights are only part of the solution. In addition to rights, there also need to be covenants (obligations) as between the adjoining freehold owners for the overlapping structure to be repaired or for contributions to be made

Examples of where a flying freehold might be found are:

for such repair. The problem in English land law is that such covenants are considered to be positive in nature and so do not bind the land. This means that, whilst such covenants will bind the original parties to a legal document, they will not

• balconies • archways • cellars which encroach under another property • where a property has been built on a steep hill and sits on top of another property for support sometimes (but rarely) in blocks of flats

bind successive owners and so the legal arrangements break down and become unenforceable once the properties are sold.

It is the absence of sufficient rights and the difficulty of enforcing positive maintenance obligations that often cause problems with flying freeholds.

What solutions are available for flying freeholds?

Scheme of mutually enforceable covenants This is the conventional way of dealing with flying freehold situations. Such a scheme typically imposes an obligation on each freehold owner to ensure that any successive owner enters into a direct deed of covenant with the remaining owner. This avoids the difficulty of enforcing covenants against successors because there should always be direct privity of contract between the two freehold owners. These arrangements should be protected by restrictions registered against the titles to both properties, stating that a sale will not be allowed unless a certificate is given to the Land Registry to confirm that the Deed of Covenant has been entered into.

This would typically be given by a Solicitor.

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Laytons LLP | What is a flying freehold?

Ideally, such a scheme would have been created from the

In some flying freehold scenarios it may therefore be that the

outset when the property was initially conveyed. If this is

use of leasehold tenure will be the better option. However, if

not the case, however, you can arrange for it to be done

a leasehold structure is to be used it will tend to be adopted

retrospectively, but the process will require mutual co-

at the outset, when the properties are first conveyed. A

operation with the adjoining owner and an amendment to the

retrospective “conversion” from freehold to leasehold tenure

title deeds.

would require co-operation between the two owners and would be more difficult and expensive.

Indemnity Insurance Policy

Access to Neighbouring Land Act 1992

This is one of the more common options available to conveyancers and would generally cover the risk of being

If you find yourself in a position where there are insufficient

unable to access an adjoining property in order to carry out

rights of entry to carry out necessary repairs, this Act can

repair work and, as a result of this, the property in question

be a useful last resort, where all other options have been

suffering damage due to the lack of maintenance or repair of

exhausted. However, as is the case with an insurance policy,

the adjoining property.

this does not remedy the problem. It should also be noted that it is a long and expensive process, and cannot provide

Where a buyer is considering the purchase of a flying freehold

any guarantee of success.

for development, they should beware that an insurance policy will commonly contain standard exclusions preventing

If the adjoining freeholder refuses to co-operate, the owner

structural alterations or a change of use. This ultimately

of the flying freehold could make an application for an order

defeats the purpose of the purchase and an alternative

from the court under the above Act. Such an order would

solution should be sought.

grant access for specific works of essential repair. Note that the court must deem the work as “reasonably necessary”

Although insurance is considered relatively standard practice

for the preservation of the whole or part of the applicant’s

nowadays, the policy itself does not, unfortunately, remedy

property, and that the work would be substantially harder to

the defects in the title.

carry out without access to the adjoining property.

Conversion to Leasehold

The benefit of such an access order naturally would not run to a successor in title. However if the access order is registered as a notice on the title, the access notice would bind

Covenants contained in a flying freehold’s title function under

successors in title to the adjoining land.

the privity of contract doctrine. As mentioned above, these positive obligations do not pass to successors in title.

Leasehold covenants operate in an entirely separate fashion, however, under the privity of estate doctrine. Under this doctrine, covenants (for repair and maintenance etc.) can be enforced against successive owners.

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Laytons LLP | What is a flying freehold?

Will mortgage lenders lend on the security of a flying freehold?

Flying freeholds can really limit the marketability of a property, as not all lenders will accept a flying freehold as adequate security. If a bank is prepared to lend then the UK Finance Mortgage Lenders' Handbook sets out the following requirements: • the property must have all necessary rights of support, protection, and entry for repair; • a scheme of enforceable covenants that are also such that subsequent buyers are required to enter into covenants in identical form; • the lender will also want to see a plan so it can identify the extent of the flying freehold. The larger the area of the flying freehold, the more difficult it will be to obtain a mortgage.

Flying freeholds have the potential to be legal minefields for conveyancers, and so it is imperative that you are confident in your choice of conveyancer from the outset.

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Laytons LLP | What is a flying freehold?

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Laytons LLP | What is a flying freehold?

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Clients benefit from direct and ready access to our lawyers, paralegals and support staff who all have a wealth of experience in achieving smooth and efficient transactions.

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New Homes Manager katie.carter@laytons.com +44 (0)1483 407 069

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Partner ian.cook@laytons.com +44 (0)1483 407 004

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Associate Partner david.mcclenaghan@laytons.com +44 (0)1483 407 008

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This information is offered on the basis that it is a general guide only and not a substitute for legal advice.

We cannot accept any responsibility for any liabilities of any kind incurred in reliance on this information.

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