A flying freehold is where a section of a property structurally overhangs a neighbouring property and is therefore ‘flying’ above land or a building which is not owned by the owner of the overhanging land.
For example, one property’s downstairs cupboard may be under a room of the neighbouring property.
So what’s the problem…..
Unfortunately obligations relating to maintenance and repair and rights of access to carry out such maintenance and repairs may not be recorded in the title deeds to a property. There is therefore a risk that the neighbouring owner does not maintain or repair their property as they should which in turn could cause damage to your property. This is a risk which can prove too much for a lender, hence why they may refuse to lend on the property.
and is there a solution……
The Council of Mortgage Lenders’ Handbook states that a lender may be prepared to lend (although this is subject to the individual conditions of each lender) in the following circumstances: -
- the property must have all the required rights of support, protection, access for repairs and covenants regarding maintenance and repair; and
- confirmation the title to the property is good and marketable (ie. that the property can be re-sold should the lender repossess the property); and,
- the flying freehold element of the property can be clearly identified on a plan.
If the title deeds do not satisfy the requirements set out at point 1 above, you may need to enter into a Deed of Mutual Grant and Easement which will set out the rights and obligations of each property owner. Such a document will normally need to be approved by the lender in order to protect their security over the property.
An alternative to the Deed of Mutual Grant and Easement is to obtain indemnity insurance which again will need to be approved by your lender.
To obtain further advice on buying a property with a flying freehold please contact Richard Jackson on 01245 228143 or firstname.lastname@example.org
The above is not legal advice; it is intended to provide information of general interest about current legal issues.