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Posted 28 Jul 2022

What Is A Flying Freehold?

apartment / buy / flat / flying freehold / house

What is a flying freehold? What are the associated issues and how should you handle any problems that arise? Find out here.

A flying freehold is a pivotal part of purchasing a property, whether it’s a flat or a house.

However, this may strike fear into the heart of even the most experienced property investor.

And when you type the likes of “flying freehold meaning” into your search engine, you’ll probably be inundated with information and jargon, leaving you nothing short of bewildered.

In this article, let me take you through what the term means, the associated issues, and how to handle any flying freehold problems that may arise.

What is a flying freehold?

A flying freehold, also known as a “creeping freehold”, is the section of freehold property that overlaps, hangs or has been constructed on top of another property – that’s where the ‘flying’ bit comes from.

That said, the house or flat needn’t be off the ground to be considered a flying freehold. The owner of the flying freehold owns what’s known as the “flying” section, not the land or buildings underneath.

Let me tell you about the typical examples of a property with a flying freehold:

  • A balcony that overhangs a neighbour’s property
  • A room positioned above next door’s garage or shared passageway
  • A living room that sits below a bedroom next door
  • A basement or cellar that protrudes below a next-door neighbour’s property

May I also add that maisonettes, flats or apartments usually lack flying freeholds, as most of these property types are marketed as leasehold properties.

The reason for this is that an owner of a leasehold property doesn’t own the land on which the property is constructed. Having said this, there are several freehold maisonettes and flats.

As you may notice, the above flying freehold illustrations are diverse. However, there’s a common theme – on a freehold lease, a property section has to lie underneath or extend over onto another house.

Often, the proportion of the total property is minuscule, with numerous homeowners living with flying freehold tenures quite happily. The issues only tend to arise when it’s time to remortgage or sell.

Issues with flying freehold

Many homeowners may be blissfully unaware they’re residing in a flat or house with a creeping freehold.

Occasionally, they only learn this when they sell or buy a property. However, flying freeholds can bring with them various legal issues, which I’ve detailed below:

Uncertainty over legal obligations. In terms of the other property owner’s land, each freeholder has limited rights.

There may be a grey area when it comes to which freeholder is responsible for the upkeep and renovation of the flying freehold section of the property.

Not maintaining the flying freehold property with necessary renovations may affect the other property. For instance, if the overlying property experiences a leaky roof, this can damage the property below.

Nonetheless, most of the time, flying freeholders avoid letting their homes become unsalvageable. However, it’s worth taking into account.

Access issues. Under the Neighbouring Land Act 1992, property owners can access neighbouring land to carry out repairs to their own property. However, there may be costs and uncertainties involved.

If, for example, one freeholder wishes to renovate or do some maintenance, things can get tricky if the neighbouring property is unregistered land and the owner’s identity is unknown.

Top tip: When thinking about purchasing a property, you should ascertain a flying freehold ahead of time to ensure you know the dangers involved.

If you’re curious about a potential flat or house with a possible flying freehold, make sure it’s been established properly and replicated in the title deeds of the protruding and underlying properties.

Neighbour disagreements. There may be disputes between your property and next door’s. For example, something may require restoring or modernising, but you and your neighbours perhaps won’t agree on whose responsibility it is for the restoration.

Even if the given repair could damage the adjacent property, you can’t coerce your neighbour into renovating or maintaining their home.

Tackling flying freehold issues

Below, I’ve pulled together several options that may address some of the issues with flying freeholds when thinking about property investment.

REACH OUT TO A PROFESSIONAL CONVEYANCER

Arguably the soundest advice I can give anyone thinking about investing in a property with a flying freehold is to seek the services of a reputable licensed conveyancer. Just be sure they have a strong understanding of this property type.

Your conveyancer must be able to examine the title deeds and any affirmative covenant that’s been established. They must also be able to advise you on whether or not the covenant is detailed enough and won’t cause problems in the future.

Not only this, a conveyancer should be able to advise you on the most rational way to tackle specific situations, as every flying freehold is different.

What’s more, other problems may arise, which may increase the dangers and obstacles you’re likely to face.

I suggest, as mentioned above, using a licensed conveyancer with in-depth knowledge of these property contract types.

TITLE INDEMNITY INSURANCE

You can purchase flying freehold indemnity insurance for several hundred pounds, which covers you if you experience issues with your neighbours. It’ll cover losses and expenses relating to the flying freehold.

However, I want to point out that this insurance type doesn’t remedy the deeds. As such, you won’t be able to force your next-door neighbour to complete work proactively as a means to safeguard your home.

DRAW UP A NEW MUTUAL AGREEMENT

If an accurate affirmative covenant hasn’t been established, the buyer and owner of the neighbouring property must create a mutual agreement, which records the shared responsibilities and rights.

That said, this new covenant would only bind future flying freeholders if they’re happy about being locked into it following the property purchase, but this can be supported further by restraint on the title register.

While creating this type of covenant can be laborious and costly (particularly since the non-selling owner won’t have a reason to collaborate sensibly), it’s more than worth it.

Why? Because the obligatory mutual rights between the existing adjacent owners are in order.

ALTERNATIVE STRUCTURE

It may be possible to adapt the flying freehold into a different legal building, like a leasehold.

This creates only one freehold from which a lengthy lease is granted to the adjacent neighbour.

I think the main boon of this is that all the affirmative covenants and appropriate rights are part of the leasehold and won’t be affected by a sale of the leasehold or freehold interests to other prospective parties.

A lease can be costly to draw up, though – plus, there could be tax implications.

So, unless you’re savvy in property law, I can’t stress enough how critical it is to get in touch with a knowledgeable conveyancing solicitor for help.

Summary: what is a flying freehold?

That’s my spiel on a flying freehold, and I hope I’ve cleared up any confusion you may have had surrounding the term.

Everything I’ve mentioned above is for general info purposes only and by no means created to supersede comprehensive legal information.

While flying freehold properties involve more risk, particularly if the right agreements aren’t in place in the title deeds, that doesn’t mean you should avoid going ahead with the purchase.

Meticulous consideration and thought are all that’s needed, so seek expert mortgage and legal advice if you’re serious about buying this property type.

Don’t delay your investment – if you want to know more about a flying freehold property, speak to us here at Fine Living now!

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