Flying Freeholds
What is a Flying Freehold?
A flying freehold has no relationship to a flying fortress (a US Boeing engined heavy bomber developed in the 1930’s) but is an English legal term to describe a freehold which overhangs (or underlies) another freehold. There is a counterpart situation known as a creeping freehold, for example, a basement or cellar belonging to one freehold underlies a different freehold at ground level.
Flying freeholds can occur in numerous scenarios although some of the more common include:
Rooms above shared passageways that lie directly beneath;
Basements or Cellars that go underneath neighbouring properties.
Balconies overhanging next doors property; and
Semi detached or terraced houses where the dividing line between the two adjacent properties are not vertical from top to bottom.
More often than not the percentage of the overall property representing a flying freehold is small and many freeholders live with flying freeholds totally unaware of them until they come to sell or remortgage when they can run into issues.
Flying freehold issues
Conveyancing solicitors are quite rightly cautious when considering the question of flying freeholds and there is good reason for this.
Whilst the vast majority of property owners with flying freeholds never have any problem at all from a legal perspective this can be far from the case.
The principal reason for concern where there is a flying freehold is a lack of positive covenant enforcement that one freeholder may have against another. The following issues do need to be considered:
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, owners of those properties could technically demolish their adjacent or subjacent buildings without any consideration for the flying freehold. Such steps could severely compromise the structure of the building as a whole and the flying freehold in particular. Similarly, if these neighbouring properties are not obligated to repair and maintain the structure on which the flying freehold relies then structural problems could arise.
Rights of Access – whilst there are statutory provisions for neighbours to obtain access over adjoining land, if there is a dispute it is likely that a Court Order would be required. When the flying freehold requires repair such as to a balcony overhanging a neighbours property then access to the neighbouring property to carry out works would be necessary. Without such rights to access, consent from the owner of the neighbouring land would be required and such person may deny access or even try to charge a premium for access and this would inhibit the flying freeholder’s ability to properly maintain their property.
How can I solve the problem?
The simplest and best way to resolve the problem is for the owner of the flying freehold and the property above or below would be for them to enter into mutually enforceable Deeds of Covenant whereby each covenant to maintain their own part and to provide shelter or support to the neighbouring land. The problem with this however is that the Deed of Covenant would not run with the land and therefore it would be necessary for new mutual Deeds of Covenant to be entered into by the owners in the event of any disposal of either part whereupon such Deeds will be recorded against the title of each property.
I have mentioned above that where access is required one party could rely on the Access to Neighbouring Land Act 1992, but it is likely that a Court Order would be required no doubt at considerable expense.
Flying freehold indemnity insurance is widely available at a relatively nominal cost and would provide cover for the inability to force the neighbouring owner to repair and for the support and protection of your property. However, this would only come into effect after issues had arisen and it would surely be better to solve the problem on day one of ownership.
There is one furthermore radical solution for overcoming the issues found with a flying freehold and which would be to convert the flying freehold to a leasehold property with new long Leases being granted to incorporate all necessary rights and covenants.
Are there any exceptions to the rule?
As with most things there are always exceptions. With regard to flying freehold there is such a thing as a “Tyneside flat” originated in the North East of England where a house is divided into two self-contained flats and where but where each flat owner will hold the leasehold title of its flat but will own the freehold of the flat above (and vice versa) and where each flat owner is responsible for the insurance, repair and maintenance of their part of the building. This is similar to a maisonette but with a maisonette the freeholder is, more often than not, unconnected to the leaseholders of any flat in the building.
Conclusion
The best thing is to seek legal advice whenever you have any worries about a flying or creeping freehold. It is particularly important to seek legal advice on flying freeholds where you are purchasing with a mortgage. Whilst mortgagees will allow flying freeholds provided there is a suitable indemnity policy in place some mortgagees will look at flying freeholds differently and will be reluctant or will refuse to lend. A property law solicitor/conveyancer will be able to competently advise of your rights and responsibilities and any risks including future saleability, mortgage ability or potential decreases in value as a result of any flying (or creeping) freehold element to a property.