Fact 35. Flying Freehold - what is it and why does it matter?
A flying freehold is part of a property that extends over or under another directly owned property, creating unique legal and maintenance challenges for owners.
Flying freeholds are a unique and important concept in UK property law, referring to a situation where part of a freehold property extends over or under a neighboring freehold property without owning the land beneath or above it. This can create complex legal issues for property owners and prospective buyers, making it essential to understand what flying freeholds are, their implications, and how they can affect property transactions and ownership.
What Is a Flying Freehold?
A flying freehold occurs when a portion of a freehold property physically overhangs or underlies another freehold property. Common examples include a room or a balcony that extends over a neighbor’s land, or a chimney stack that projects over an adjoining property. Importantly, the owner of the flying freehold owns the physical structure but not the land beneath or supporting it. This situation often arises in older buildings where architectural features were created before modern property boundary laws were strictly enforced.
Why Does a Flying Freehold Matter?
Flying freeholds are significant because they can complicate property ownership, rights, and responsibilities in several ways:
Limited Rights Over Neighboring Land: Owners of flying freeholds usually do not have automatic legal rights to access the neighboring property below or adjacent to carry out repairs or maintenance of the overhanging structure. This can lead to disputes or challenges in maintaining the property.
Risk to Structural Integrity: If the neighboring property owner fails to maintain the supporting structure or undertakes modifications that affect the flying freehold, the overhanging part could be at risk, potentially compromising safety.
Impact on Sale and Mortgage: Flying freeholds can deter mortgage lenders who may see them as a risk due to the potential legal complications, often requiring higher interest rates or indemnity insurance to mitigate those risks.
Legal Disputes: Disputes between owners over rights and responsibilities related to flying freeholds can be complex and costly to resolve. These may require negotiation, mediation, arbitration, or in extreme cases, litigation.
Challenges and Legal Considerations
One of the main legal challenges with flying freeholds is the lack of clear legal rights for owners to access the neighboring property to maintain or repair their flying structure. Since the land beneath belongs to another owner, compulsory access rights are limited without specific agreements.
Common legal and practical approaches to manage flying freehold issues include:
Deed of Covenant: Neighbors can enter into a mutual agreement, typically a deed of covenant, which sets out reciprocal rights and responsibilities, such as rights of access for repairs and maintenance. However, such agreements require cooperation and can be costly and time-consuming to implement.
Leasehold Conversion: Transforming the flying freehold area into a leasehold can help establish clearer rights for access and maintenance. This is often done by granting a long lease to the adjoining owner, giving them rights and obligations related to the flying freehold.
Flying Freehold Indemnity Insurance: Due to the risks involved, buyers and lenders often require indemnity insurance, which covers legal costs and potential claims related to the flying freehold.
Planning Permissions: When new developments or modifications create flying freeholds, local authorities may impose conditions as part of planning permissions to mitigate potential legal and practical problems.
Practical Steps When Dealing with Flying Freeholds
For buyers, sellers, and conveyancers dealing with flying freeholds, it is essential to proceed with caution and due diligence:
Engage a Specialist Conveyancing Solicitor: Experience in flying freehold transactions is crucial to navigate the legal complexities, review title documents, and seek necessary indemnity insurance.
Thorough Title Investigation: Check the property's title deeds carefully for any covenants, restrictions, or agreements related to the flying freehold.
Obtain Structural Surveys: Since flying freeholds can pose structural risks, a detailed survey can identify any potential issues.
Negotiate Access and Maintenance Agreements: Where possible, secure rights for access and maintenance via deeds of covenant or leasehold arrangements.
Inform Mortgage Lenders Early: Lenders may have specific conditions or require indemnity insurance for properties with flying freeholds.
Potential Problems and Solutions
Disrepair and Maintenance Issues: Without access rights, one owner may neglect essential maintenance, harming the other’s property. Solutions include negotiated access agreements or legal remedies.
Risk of Structural Damage: Owners below a flying freehold could alter or demolish supporting structures, risking the flying part. Legal protections such as rights of support and shelter can help prevent this.
Difficulty Selling: Properties with flying freeholds are sometimes harder to sell due to perceived risks or lender concerns. Clear legal arrangements and insurance can mitigate this.
Complex Negotiations: Reaching agreements requires cooperation between neighbors, which is not always forthcoming. Professional mediation or arbitration can assist in resolving disputes.
Summary of Key Points:
A flying freehold is a part of a property that extends over or under a neighboring property without owning the land beneath or above.
It creates limited access rights and can lead to maintenance and structural risks.
Buyers and lenders often require indemnity insurance and thorough legal checks.
Legal solutions include deeds of covenant, leasehold conversions, and planning permissions.
Disputes may require negotiation, mediation, arbitration, or litigation.
Specialist legal advice is crucial for successful conveyancing involving flying freeholds.