The term flying freehold is used to describe freehold property that overhangs other freehold land beneath it or projects into another freehold.
For example: Imagine a row of old houses each separated on the ground floor by an archway for access between the properties, the parts of the property above the archway is the flying freehold.
A flying freehold can also exist in various other ways; however, a common example is a balcony that protrudes over another freeholder’s land. The term may be somewhat misleading as not all flying freeholds are actually flying in mid-air. It may be a case where one freehold underlies another.
Please note: the ‘flying’ element must be capable of being inhabited and therefore overhanging drainpipes do not fit into this category.
Are there any potential problems?
The main problem that the owner of a flying freehold may experience relates to maintenance.
Using the archway example mentioned above, the flying freehold owner Mrs Sky owns the ‘flying’ part located above the archway, but not the land beneath it which is owned by Mrs Land. Mrs Sky begins to notice that there is subsidence in the part of her property that is situated above the archway and as such wishes to carry out repair works which will require the erection of scaffolding on Mrs Land’s property. Mrs Land is not obliged to allow Mrs Sky to erect scaffolding on her land and is not required to physically support or repair in relation to Mrs Sky’s property above the arch. In the event that Mrs Land does not allow Mrs Sky to erect the scaffolding and therefore repair her property there may be little that can be done to rectify matters.
Some lenders may be reluctant to lend where there is a flying freehold unless the lawyer instructed in the purchase has confirmed that there are adequate rights in relation to support, repair and shelter.
What are the solutions?
The most common solution is for a flying freeholder to take out indemnity insurance. The policy will protect the insured from losses in the value to their property resulting from a lack of maintenance of an adjoining property and also legal fees in the event the matter progresses to court. This may not overcome the practical problem of actually maintaining the area.
A longer term and more secure solution is to enter into a deed between the respective owners to grant rights and obligations. This method would require some level of negotiation and may be a lengthy process however, any defects in title will be remedied.
There are other methods that are commonly used to remedy flying freeholds which we have advised our clients on in the past. If you require advice in this area then please contact our property team.
Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.
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