A flying freehold refers to freehold property built over land which does not form part of the property. It is used to describe the situation where a freehold property overhangs or projects out from underneath.
Some lenders have a policy of not lending on any property where this feature exists whilst others choose to do so on a case-by case basis. Some companies will lend if the flying freehold does not exceed a set limit, often 15% of the total floor area of the building. Even if a lender is prepared to lend, there is no guarantee that a future lender will do so, rendering the property blighted to a degree.
Sometimes the existence of a flying freehold is discovered during the process of selling or purchasing a property. Lenders will want confirmation that the property has adequate rights of support and entry to carry out repairs and may require the property owner to take out a title indemnity policy as protection against loss of failure to carry out repairs.
Common problems associated with flying freeholds are problems with repairs, access and enforcing covenants. It can be difficult for owners to organise repairs as there is no automatic right to access for erecting scaffolding on the land underneath. The Access to Neighbouring Land Act 1992 would allow access to carry out repairs but not for redevelopment.
Properties subject to a flying freehold cannot be registered for commonhold purposes under the Commonhold and Leasehold Reform Act 2002
Chartered surveyors when carrying out site inspections for home surveys or valuation purposes and solicitors and licensed conveyancers during the conveyancing process need to be aware of the existence of flying freeholds and ensure that they advise their clients accordingly.
Examples of flying freeholds are found in medieval buildings in towns such as York and Chester with rooms build across passageways, basement vaults and archways through rear courtyards and in areas where houses are built on steep hills.
Flying freeholds have been considered in Abbahall v Smee 2002 and Bashir v Ali 2011
For further information contact our library team.
Read the next page in this section