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Put simply, a flying freehold is any part of a freehold property that either extends over or reaches into a neighbouring property. As the owner of one, you own the ‘flying’ part, but not the land or buildings beneath it. Typical examples of a flying freehold are:
- an upper-level room extending over a shared accessway;
- a balcony protruding over neighbouring property;
- a room with multiple floors where the room configuration prevents vertical division.
Flying freehold problems
Legally, flying freeholds are problematic, in most cases having no express right of support or access from the property below. Indeed, neither owner can compel the other to repair or maintain their property, which is potentially a huge issue for both. As a result, they are considered a defect in title.
Creeping freehold
A similar problem occurs where part of one freehold property underlies another at ground level. This is referred to as a creeping freehold. In most cases, it involves a basement or cellar lying fully or partly beneath the neighbouring property. Works to the underlying section are often impossible without express consent from the freeholder above if those works could affect their property in any way.
Flying freehold mortgage
The presence of a flying freehold often presents a problem for both properties in terms of mortgage finance. Lenders want a clean title and some operate a blanket ‘no-lend’ policy towards them. Most, however, will lend, albeit subject to certain conditions. A common stipulation is that the flying freehold element of the property must not exceed a certain percentage of the total floor area. This is often 20% but can range between 10% and 25%.
The lender is also highly likely to require the borrower to take out indemnity insurance to protect against any potential problems relating to the flying freehold. There will be a single policy premium and the cover is relatively inexpensive. Your conveyancing solicitor can arrange that for you.