What is a flying freehold?

Flying freehold is an English legal term to describe a freehold which overhangs or underlies another freehold.

This is fairly commonplace, for example a room situated above a shared passageway in a semi-detached house, or a balcony which extends over a neighbouring property.

Dependent for structural support

One person’s property may be dependent on the neighbouring property for structure and support.

Sometimes the 'flying' element is very small, but the phrase really applies to part of the building which can be actually occupied. This is why overhanging drainpipes and guttering do not fall into this category (these should have a right of 'eavesdrop' as it is known to Conveyancing Solicitors).

Does this only apply to freehold properties?

The crucial word in all of this is 'freehold' as flying freeholds do not apply to leasehold properties. Also if there is a situation where the major part of one dwelling lies above another one then they will probably be better described as freehold flats on which different issues arise.

Does the property you are buying have a flying freehold?

If you believe that the property you are buying has an area which ought to have a flying freehold element, you should notify your conveyancer as early on in the transaction as possible. They will not see the property itself and if there is an issue where there ought to be a flying freehold in place, it would be better for them to address this issue for you sooner rather than later.

What are the legal rights?

Conveyancing Solicitor Julia Gaunt says "From a conveyancing point of view, each property should have appropriate legal rights; for instance the upper property should have a right of support from the lower one, while 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 property if this is necessary to carry out repairs or maintenance."

What happens if the neighbouring property falls into disrepair?

It is not much use having rights if the owner of the other property fails to maintain their part of the building. If you own the lower part and the other owner lets their roof collapse, you will want them to replace it or otherwise your home might get flooded. Each owner should be under an obligation to the other to maintain and insure their part of the building, but even if there were covenants in an original deed these will not benefit subsequent owners.

At present English law does not generally permit what are known as positive covenants or obligations to 'run with' the land and bind successive owners. The way to get round this in an ideal world is for the title of each property to contain provisions requiring each successive owner to enter into a deed of covenant so that the owners of each of the properties will always be bound by mutual obligations. However this is rarely encountered in practice.

Am I entitled to go onto my neighbours' property to carry out works and recover the cost from them?

If there is no enforceable provision in the deeds, there is some case law relating to owners’ rights which may benefit owners.

One case that went all the way to the Court of Appeal is the case of Abbahall v Smee (2002). The Court decided that the party who allowed the roof space to fall into disrepair and affect the property below did have a duty of care. However, the costs of repairing the roof had to be borne by both parties as they would equally benefit.

Access to Neighbouring Land Act 1992

The Access to Neighbouring Land Act 1992 contains provisions which enable owners to go onto a neighbour's land to carry out repairs to their own property. This may assist if there are no specific rights contained in the deeds, but the Act does not enable one owner to carry out works to the other owner's property. The Act requires a court access order to be obtained, and the person carrying out the work will probably have to indemnify the other owner against any loss, damage, or injury.

Julia concludes "It is not advisable to rely upon a Court’s decision to give comfort in purchasing a flying freehold and it is important to seek advice from a solicitor specialising in Conveyancing. In my experience, no two properties with a flying freehold issue are the same so specific advice should always be sought."

Flying freehold indemnity insurance

Flying freehold indemnity insurance is widely available for titles which are affected by flying freeholds. This particular indemnity insurance is available to any prospective purchasers (and often mortgagees) for inadequate cross covenants and repairing obligations.

However, not all lenders are prepared to lend on flying freeholds, even with indemnity insurance.

Our Conveyancing Team and are happy to discuss any issues that this raises for you and we offer a free initial meeting or chat on the phone.

If you have any questions, you only have to ask us at Frettens. Please call 01202 499255 or 01425 610100 and Julia or a member of the team will be happy to chat about your situation and your particular requirements.