Flying and Creeping Freeholds!

What is a flying freehold?

It is said, in the case of the ownership of freehold land, there is a presumption that it includes the surface and everything below and above it. There are of course some exceptions for example minerals.

Another exception is a “flying freehold” – this simply means that part of a property overhangs or lies beneath another’s property

Common examples include:

– A balcony overhanging a neighbour’s property;
– A cellar that runs underneath a neighbouring property (sometimes known as a creeping freehold);
– A room above a shared passageway;
– Where the dividing line of a terraced or semi detached property isn’t straight from the top to the bottom – for example someone’s bedroom may sit on top of another’s kitchen.

Flying freeholds tend to be more common in older properties or where larger properties have been converted into a number of smaller properties.

Why is it a problem?

Each property will need the appropriate legal rights – for example the upper property should have a right of support from the lower one, and the lower property should enjoy a right of shelter from the upper one.

There should also be rights for each owner to enter the other’s property to carry out repairs or maintenance. Renovation works can cause an issue if the parties cannot agree.

Aside from that, even if the rights exist, they are not much use if one owner fails to maintain their part of the building.

Covenants should be imposed upon each owner at the outset, the problem is these will not bind subsequent owners.

English Law does not generally allow “positive covenants” to run with the land and therefore bind the future owners. Ideally every transfer should ensure the subsequent owner enters into a deed of covenant so that the owners of each of the properties will always be bound by their mutual obligations. However this is rarely happens.

Some mortgage lenders are reluctant to lend on flying freeholds and this will vary from lender to lender.

An indemnity insurance policy can be an option but again not all mortgage lenders are happy to accept this.

What can you do?

In most cases your conveyancer will not physically inspect the property, so it is important that any potential purchaser carefully inspects and notifies their surveyor and conveyancer of any concerns so that these can be fully investigated prior to exchange of contracts.