Flying Freehold Definition
A flying freehold occurs when part of a freehold property extends over or under land owned by a different freeholder. The overhanging or underlying section "flies" above or below the neighbour's property, creating a situation where your ownership occupies airspace or subsoil that belongs to someone else.
Common examples include a bedroom that extends over a shared passageway, a first-floor room that overhangs a neighbouring property's ground floor, or a bay window that projects over a neighbour's land. In older town-centre properties, flying freeholds can be extensive, with entire upper floors spanning across multiple ground-floor units.
How Flying Freeholds Arise
Flying freeholds typically result from historical building patterns and later modifications:
- Historic construction: Properties in medieval towns were often built with upper floors overhanging the street or neighbouring buildings (jettying)
- Property subdivision: When a single building is divided into separate freehold units, the upper and lower parts may not align with the land boundaries
- Extensions and alterations: A room built over a shared passage, garage or alleyway creates a flying freehold
- Terraced house conversions: When end-of-terrace properties are modified, rooms may extend over adjoining properties
Legal Issues with Flying Freeholds
The fundamental problem with flying freeholds is enforcement. In English property law, positive covenants (obligations to do something, such as repair a roof) cannot generally be enforced against subsequent owners of freehold land. This creates a dilemma:
- Maintenance obligations: If the ceiling of the flying freehold section is also the floor of a room above, who pays for repairs? The original covenant requiring the neighbour to maintain the structure may not bind future owners
- Access rights: You may need to enter the neighbouring property to carry out repairs to the flying freehold section, but access rights may not be guaranteed
- Insurance complications: Insuring the building as a whole can be complex when different parts are owned by different freeholders
- Structural dependency: The flying freehold section depends on the neighbour's building for structural support, creating mutual dependency without a clear legal framework
Flying Freeholds and Mortgages
Mortgage lenders approach flying freeholds with caution. Their main concerns are:
- Difficulty enforcing repair obligations against the neighbouring freeholder
- Potential reduction in property value due to buyer reluctance
- Insurance complications that could leave the property underinsured
In practice, many lenders will consider flying freehold properties if:
- The flying freehold element is a small proportion of the total property (typically under 25-30% of the floor area)
- Indemnity insurance is in place to cover the risk of the neighbour failing to maintain the structure
- Adequate mutual covenants exist between the freeholders, even if their enforceability is imperfect
- A surveyor confirms the structural condition is satisfactory
Some specialist lenders are more flexible than high-street banks. A mortgage broker experienced with non-standard properties can help identify suitable lenders.
Buying a Property with a Flying Freehold
If you are considering buying a property with a flying freehold, your solicitor should:
- Review the title: Check what covenants exist between the freeholders and assess their enforceability
- Obtain indemnity insurance: This protects against the risk of the neighbouring freeholder failing to maintain the shared structure
- Commission a full structural survey: Pay particular attention to the flying freehold section and its supporting structure
- Check lender requirements: Confirm your mortgage lender will accept the flying freehold before committing to the purchase
- Assess the extent: Determine what percentage of the property is affected - a small projection is very different from an entire floor
Flying Freehold vs Leasehold
One solution to the flying freehold problem is to convert the property to leasehold. Leasehold covenants (both positive and negative) are enforceable against subsequent owners, which means maintenance obligations can be properly secured. This is why most purpose-built flats are sold as leasehold rather than freehold.
Commonhold offers another potential solution, allowing freehold ownership with enforceable mutual obligations, but it remains very rarely used in practice.