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What is a flying freehold, and what issues can it pose?

Jun 21, 2021 by Alan Aksenenko

A flying freehold isn’t an extravagant as it might sound. For starters, it doesn’t apply to owning an aeroplane, but we can all dream. If you come across the term “flying freehold”, it’s probably because part of a property you’re buying or selling either overhangs (is directly above) or lies beneath (situated directly under) another person’s freehold property. 

Although this concept is rather straightforward and easy to understand, it can bring with it a host of legal property issues that can be frustrating and complicated to address. Which is why we’ve put this guide together detailing everything you need to know about flying freeholds. 

When does a flying freehold occur?

Flying freeholds can occur in a multitude of scenarios, such as when:

  • part of a building sits above a shared alleyway
  • the balcony overhangs on neighbouring land
  • a terraced house where the boundary between the two properties is not a straight line (i.e. not straight down the middle - one side overhangs the other)
  • houses have part of the property directly above or under another freehold property

For the most part, a clear rule can be made for defining a flying freehold: part of the property is either beneath or above another freehold property. In relation to the rest of the freehold tenure, the flying freehold will make up a very small and often insignificant part of it. Yet, it can cause significant problems when trying to sell the property.

How will a flying freehold affect me selling my home?

An arm with a house and a moneybag

Flying freeholds can be the source of some problems, and conveyancing solicitors will be highly cautious when tackling issues relating to them. Typically, a covenant in legal terms is a rule, agreement, or promise which creates an obligation, where one party agrees to abide by a certain rule to another party, which is quite common in property law. 

With flying freeholds, however, there is a lack of positive covenant enforcement between one freehold tenant and another, which is largely due to the legal provisions on this being very much out of date. This brings about significant and unwanted legal issues when it comes to renovation of a flying freehold for instance.

If the flying freehold tenant wants to carry out repairs, the landlord who has the land where the flying freehold is over or underneath may refuse access, protest, or put forward additional costs, which makes properties with flying freeholds to some extent unattractive. 

On the other hand, there can be the contrary issues where repairs need to be carried out. You are under no legal obligation to maintain your property, but your failure to maintain it could affect the property underneath it (e.g. your property is a flying freehold). 

The problem on the overlying property would put yours underneath it at risk. However, the power of enforceability to carry out any repairs may be non-existent, which, in such circumstances, can cause disputes between neighbours and bring about legal challenges.

Summary

There is a workaround, which would see the option for both landlords to enter into a Deed of Covenant. This would grant both the landlords (the one with the flying freehold and the one whose land it protrudes) the benefit of appropriate covenants, avoiding a possible legal battle. Again, although there can be reason for concern over buying and selling a home with a flying freehold, there will usually be a practical solution that will satisfy all parties involved and resolve the problem in a reasonable manner. 

General
Jun 21, 2021 by Alan Aksenenko

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