We often come across frying freeholds and are asked to advise upon them when our clients sell or buy properties where part of the property is a flying freehold.
A flying freehold is a legal term used to describe a part of a freehold property which overhangs or underlies another freehold. Common examples include a room situated above a shared passageway such as an arch or a balcony which extends over a neighbouring property. The owner of a flying freehold does not actually own the structure which supports that part of their property.
If a flying freehold has been established correctly, then the existence of this would be reflected in the deeds, whether they be unregistered or registered at the Land Registry, in both the overhanging and the underlying properties. This would provide the appropriate rights to enter into the neighbouring property in order to inspect, maintain or repair as necessary the freeholder’s own property. Furthermore, appropriate covenants (agreements) should be included in both properties deeds to prevent the neighbour undertaking any alterations or works to their property which may affect the structural integrity of the neighbouring property which underlies or overhangs.
In the absence of the appropriate rights and covenants over the adjoining property, the best case scenario is for an additional document to be entered into with the neighbour to create such rights and obligations. However, we are often asked to arrange (as it if often cheaper and quicker to do this), a flying freehold legal indemnity insurance policy. This provides cover when part of a residential or commercial freehold property extends over or under adjoining premises and the property owner is unable to undertake the necessary repairs or exercise the appropriate rights that would be acceptable to any purchaser or in some circumstance a mortgage lender.
The Access to Neighbouring Lands Act 1992 contains provisions which enable owners to go on to a neighbour’s land to carry out repairs to their own property, but to rely upon such legislation would require an application to the Court and this would not normally provide the appropriate level of comfort for any house purchaser.
Additionally, not all lenders are prepared to lend against flying freeholds, even with indemnity insurance and your Solicitor would need to notify your proposed lender to check whether the property remains acceptable security.
For further information in connection with selling or purchasing properties with flying freeholds or any other aspect when buying or selling a property, please contact our Property Team on 01267 237441 – Option 1.