Maybe you’ve found your dream home, with all the specs you wanted, in the area you wanted, at the price you wanted. You’re about to start the legal process and your solicitor tells you there’s a flying freehold. And you have no idea what that means.
If you have chosen Moore Barlow as your lawyers we will be able to explain what a flying freehold is, review the title documents carefully, and give you the advice you need.
What is a flying freehold?
A flying freehold is a term used to describe a freehold Property which overhangs or underlies another freehold Property. This could be a house where some of the property extends over or under another house, or a room above a shared passageway in a semi-detached house, or a balcony which extends over a neighbouring property. One person will own the upper part or the “flying” part, and another will own the below part.
What is the issue with a flying freehold?
Generally speaking, there can be title defects when it comes to flying freeholds. As the upper part relies on the below part structurally, it means ensuring that there are adequate mutual rights and covenants within the title. You would need both parties involved to have covenants not to obstruct or damage the other person’s property, to keep their part of the property is good repair and condition, to make any damage good. You would also need both parties involved to have the necessary rights over the other part of the property, including a right of support and protection from the other part of the property, and a right to access their part of the property for repair and maintenance of your own part, and a right for the upper part to erect scaffolding if needed for repair and maintenance.
If there are not these specific rights and covenants above, difficulties can arise with the other party to the flying freehold. You cannot compel another owner to maintain and repair their property or land, even if your property structurally depends on it. Under legislation you are able to enter onto neighbouring land to carry out repairs to your property, but this doesn’t extend to repairing other property. Difficulties can also arise if the maintenance obligations are unclear.
Positive covenants (such as things you have to do, as opposed to things you cannot do) do not generally run with the land, and therefore only bind the parties who entered into that covenants, and not all the successors of the property. Therefore with a flying freehold, there must be what’s called a “scheme of enforceable covenants” to ensure that each new owner of the property will be bound by the positive covenants. Normally this means obliging each party to enter into a deed of covenant, to confirm they agree to be bound by the same terms.
The other part to consider when you are buying a property, is to ask your surveyor to confirm that the property is either adequately supported by the flying freehold, or adequately supports the flying freehold.
What about lenders?
Different lenders have their own criteria and assess each property on a case by case basis. Some of these criteria relate to ensuring the necessary rights of support & protection, that there is a right to enter onto adjoining land or properties for repair, and that there is a scheme of enforceable covenants. Others relate to the footprint of the flying freehold. However if their criteria are not met then a lender may be reluctant to accept the property as security for a mortgage. Different lenders have different requirements and therefore your solicitor will need to review the Lender’s Handbook to establish what they need. Even if you are not buying a property with a mortgage, you must be aware that a future buyer may do, and therefore they will have to meet certain criteria to be able to lend.
What are the solutions?
If the rights and covenants are not clearly defined in the title, then a deed can be drawn up by your solicitors to specify the specific rights and covenants of each party, and that there is a scheme of enforceable covenants. This is the preferred way of dealing with flying freeholds, to make it clear what each party is obliged to do and not do.
However it is possible to get indemnity insurance instead. This is the less preferred method as it does not solve the issue of being able to access neighbouring property. A flying freehold indemnity policy would cover loss or damage if you are unable to enforce the neighbouring property to contribute or provide access or repairs. This would be a one off cost, and the price depends on the value of the property.
Should I buy a house with a flying freehold?
If your future house has a flying freehold, it’s really important to instruct solicitors with the relevant expertise. They can review the title documentation, provide you with the advice you need, and discuss what options you have.
How Moore Barlow can help you
Whether you’re buying or selling, Moore Barlow has experience in all aspects of residential property conveyancing. We have offices stretching from the bright lights of the City, down the Surrey Hills to the tranquillity of Lymington, our lawyers have local knowledge. Explore how we can help you with buying or selling
