The phantom menace: are you buying a flying freehold?

When you think of a haunted house, you probably picture creaking floorboards, cobwebs and a phantom drifting along the landing. In residential property, though, a different kind of floating entity can make mortgage lenders nervous: the flying freehold.

It sounds like something off a witch’s broomstick, but a flying freehold is a real and surprisingly common legal quirk that our Hereford property lawyers come across regularly.

What is a flying freehold?

A flying freehold arises when part of one freehold property sits above, or below, land or a building owned by someone else.

Think of it as a legal phantom: part of your home is suspended in mid-air and relies on your neighbour’s property to hold it up.

Common examples include:

• The bedroom over the alleyway: a room in your house sits on top of a shared archway or passage owned by someone else
• The interlocking cottage: a period terraced cottage where a first-floor bedroom extends over the neighbour’s ground-floor sitting room
• The overhanging balcony: a balcony or terrace that projects across the boundary above an adjoining property.

Why are lenders wary of them?

On paper, a flying freehold looks harmless. You own the room; your neighbour owns the space beneath it. So, what’s the issue?

Under English law, the general rule is that an obligation to do something, what we call a positive covenant – such as keeping a roof or wall in repair – doesn’t automatically bind later owners of freehold land. That means you may have no straightforward way to make a future neighbour maintain the part of their property that supports or protects yours.

If the structure beneath your ‘flying’ bedroom starts to crumble, or water pours in from next door, you could find yourself caught in a costly and stressful dispute. For that reason, mortgage lenders look closely at flying freeholds. Many will still lend, particularly where the flying element is small and the appropriate rights are in place, but some will decline or impose conditions.

Legal ghostbusting: how to protect yourself

If you have fallen for a property and your solicitor spots a flying freehold, there’s no need to run away screaming. There are several ways to lay this particular ghost to rest:

• The right easements: well-drafted title deeds should give you a right of support from the neighbouring structure, a right of shelter and protection, and a right to enter the neighbour’s property to inspect and carry out repairs. These rights pass with the property, so they protect future owners too
• Repair arrangements: while an easement cannot usually force a neighbour to carry out repairs, solicitors can sometimes use other mechanisms, such as a chain of covenants or a deed of mutual covenant, to share repair responsibilities more effectively
• Title indemnity insurance: if the deeds are old or silent, your solicitor may recommend a flying freehold indemnity policy. This is usually a relatively inexpensive, one-off premium, often paid by the seller, that protects you and your lender against certain financial losses connected with the defect.

Your ghost-hunting checklist

If you suspect a flying freehold, ask your solicitor:

• Does any part of the property sit over or under a neighbour’s land?
• Do the deeds include rights of support, shelter and access for repairs?
• Is there any arrangement for sharing repair costs?
• Will my mortgage lender accept the property as it stands?
• Is indemnity insurance needed, and who will pay for it?

The verdict

Flying freeholds are a good example of why it’s important to look beyond a property’s appearance. A house can seem perfect from the street while its legal title hides a few surprises.

It’s also another reason we always recommend a survey. As your solicitors, we check the title deeds and plans, but we don’t visit the property and the documents don’t always give the game away. A flying freehold can be invisible on paper, so a surveyor who walks through the rooms and looks at how the building sits against its neighbours may spot what the deeds don’t reveal.

Before you sign on the dotted line this spooky season, make sure your solicitor has checked the title, the HM Land Registry plan and the rights benefiting and burdening the property. With the right protections in place, you can keep the monsters at bay and enjoy your new home in peace.