The concept of a “flying freehold” is a distinctive feature in property law, often encountered in multi-level buildings where parts of a property are suspended over another part of a different property. Understanding flying freeholds is crucial for property owners, potential buyers, and legal professionals to navigate the complexities associated with ownership rights, maintenance responsibilities, and legal implications.
At DLS Solicitors, we aim to provide a thorough and clear explanation of flying freeholds, ensuring our clients are well informed and prepared to handle these unique property arrangements.
What is a Flying Freehold?
A flying freehold occurs when a part of a freehold property extends over or under another freehold property without being in contact with the ground. This situation typically arises in properties such as townhouses, where a room or section of one property overlaps a room or section of a neighbouring property. Flying freeholds can also occur in situations where buildings are constructed in close proximity, such as in the case of old mills or converted flats.
Key Characteristics of Flying Freeholds
- Overlapping Structure: A part of the property physically overhangs or underlies another freehold property.
- Separate Ownership: Each property involved in a flying freehold has a different owner, with distinct legal titles.
- Maintenance Responsibilities: Owners must coordinate maintenance and repairs, which can be complicated by the overlapping structure.
Legal Framework and Issues
Flying freeholds present unique legal challenges, particularly concerning rights of support, access for repairs, and potential disputes between neighbouring property owners. The legal framework governing flying freeholds is based on common law principles and statutory provisions.
Rights of Support and Access
One of the primary legal issues associated with flying freeholds is the right of support. The part of the property that forms the flying freehold relies on the underlying structure for support. Ensuring that this support is maintained is essential for the safety and integrity of both properties. Additionally, access for maintenance and repairs can be a contentious issue, as owners may need to enter the neighbouring property to carry out necessary work.
Legal Provisions
Several legal provisions and mechanisms can help manage the complexities of flying freeholds:
- Covenants: Covenants can be included in the property deeds to outline each owner’s responsibilities regarding support, maintenance, and access. These covenants can help prevent disputes and ensure that both properties are adequately maintained.
- Easements: Easements can be granted to provide legal access rights for repairs and maintenance. An easement is a legal right to use a part of the neighbouring property for a specific purpose, such as accessing a flying freehold for repairs.
- Indemnity Insurance: Indemnity insurance can be obtained to protect against potential legal disputes and financial losses arising from issues related to a flying freehold. This insurance can provide peace of mind for property owners and prospective buyers.
Challenges and Risks
Owning or purchasing a property with a flying freehold presents several challenges and risks that must be carefully considered. Understanding these risks is essential for effectively making informed decisions and managing potential issues.
Maintenance and Repair Disputes
One of the most significant challenges associated with flying freeholds is the potential for disputes over maintenance and repairs. Since the flying freehold relies on the underlying structure for support, both property owners must cooperate to ensure that necessary repairs are carried out. Disagreements over the cost, timing, and extent of repairs can lead to legal disputes and strained relationships between neighbours.
Difficulty in Obtaining Mortgages
Lenders may hesitate to provide mortgages for properties with flying freeholds due to the potential legal complexities and risks involved. Prospective buyers may find it challenging to secure financing, which can impact the property’s marketability and value.
Limited Access for Repairs
Accessing the flying freehold for repairs can be problematic if the neighbouring property owner is uncooperative. Ensuring that legal access rights are established through covenants or easements is crucial to avoid disputes and ensure that necessary maintenance can be carried out.
Potential for Structural Issues
Flying freeholds can present structural issues, particularly if the underlying property is not adequately maintained. Ensuring that both properties are regularly inspected and maintained is essential for preventing structural problems that could compromise the safety and integrity of the buildings.
Practical Considerations for Property Owners and Buyers
Navigating the complexities of flying freeholds requires careful consideration and proactive management. Both current property owners and prospective buyers should take several practical steps to address potential challenges and mitigate risks.
For current property owners:
- Review Property Deeds: Ensure that the property deeds include clear covenants outlining maintenance responsibilities and rights of access. If these covenants are absent, consider negotiating with the neighbouring property owner to establish them.
- Regular Inspections and Maintenance: Conduct regular inspections and maintenance to ensure the property remains in good condition. Promptly address structural issues to prevent them from escalating and potentially affecting the flying freehold.
- Open Communication: Maintain open lines of communication with the neighbouring property owner. Establishing a cooperative relationship can help prevent disputes and facilitate the coordination of maintenance and repairs.
- Obtain Indemnity Insurance: Consider obtaining indemnity insurance to protect against potential legal disputes and financial losses related to the flying freehold. This insurance can provide peace of mind and financial security.
For prospective buyers:
- Conduct Thorough Due Diligence: Conduct thorough due diligence before purchasing a property with a flying freehold to understand the legal and structural implications. Review the property deeds, inspect the property, and consult with legal and property professionals.
- Seek Legal Advice: Engage a solicitor with expertise in property law to review the terms of the flying freehold and advise on potential risks and legal protections. Legal advice is essential for making informed decisions and protecting your interests.
- Consider Financing Options: Obtaining a mortgage for a property with a flying freehold may be challenging. Consult with lenders to understand their requirements and consider alternative financing options if necessary.
- Negotiate Covenants and Easements: If the property deeds do not include clear covenants or easements related to maintenance and access, consider negotiating these terms with the seller and neighbouring property owner before completing the purchase.
Case Law and Examples
Examining relevant case law provides valuable insights into how courts interpret and apply the principles of flying freeholds. Notable cases include:
Phipps v Pears [1965] 1 QB 76
In this case, the Court of Appeal considered the issue of rights of support between neighbouring properties. The court held that there is no general right of support between buildings unless expressly granted by covenant or easement. This case highlights the importance of establishing clear legal rights to support and access for flying freeholds.
Borman v Griffith [1930] 1 Ch. 493
This case involved a dispute over the right of access for repairs. The Court of Appeal held that an easement could be implied to allow access for necessary repairs, even if not expressly granted in the property deeds. This case underscores the importance of legal mechanisms, such as easements, to ensure access for maintenance and repairs.
Baker v Craggs [2018] EWCA Civ 1126
In this case, the Court of Appeal addressed the issue of priority between competing interests in the context of a flying freehold. The court held that the overreaching principle could apply to resolve conflicts between different property interests. This case illustrates the complexity of legal issues that can arise with flying freeholds and the need for careful legal analysis.
Practical Advice and Considerations
Navigating the complexities of flying freeholds requires a careful balance of legal knowledge and practical considerations. Whether you are a property owner dealing with an existing flying freehold or a prospective buyer considering such a property, the following advice can help you manage the process effectively.
For Property Owners:
- Engage Professional Services: Work with surveyors, architects, and legal professionals to ensure that the structural and legal aspects of the flying freehold are properly managed. Professional advice can help identify and address potential issues before they escalate.
- Establish Maintenance Agreements: Negotiate and establish formal maintenance agreements with the neighbouring property owner. These agreements should outline each party’s responsibilities and procedures for coordinating repairs and maintenance.
- Monitor Legal Developments: Stay informed about legal developments and case law related to flying freeholds. Understanding how courts interpret relevant principles can help you navigate potential disputes and protect your interests.
- Maintain Clear Records: Keep detailed records of all communications, agreements, and maintenance activities related to the flying freehold. Clear documentation can support your position in the event of a dispute.
For prospective buyers:
- Evaluate Structural Integrity: Conduct a thorough structural evaluation of the property, including the flying freehold and the underlying structure. Identify any potential issues that could impact the safety and integrity of the property.
- Understand Legal Implications: Fully understand the legal implications of purchasing a property with a flying freehold. Review the property deeds, covenants, and easements, and consult with legal professionals to ensure you know your rights and obligations.
- Consider Future Implications: Consider the long-term implications of owning a property with a flying freehold. Evaluate the potential for future disputes, maintenance challenges, and the impact on property value and marketability.
- Plan for Contingencies: Develop contingency plans to address potential issues related to the flying freehold. These plans may include setting aside funds for unexpected repairs, obtaining indemnity insurance, and establishing legal protections.
Conclusion
Flying freeholds are a unique and complex feature of property law, presenting opportunities and challenges for property owners and prospective buyers. Understanding the legal framework, potential risks, and practical considerations is essential for effectively managing these properties and protecting your interests.
At DLS Solicitors, we are committed to providing expert guidance and support on all matters related to flying freeholds. Whether you are a current property owner seeking to address maintenance and legal issues or a prospective buyer considering a property with a flying freehold, our team of experienced solicitors is here to help. By combining legal expertise with practical advice, we ensure our clients are well-equipped to handle the complexities and opportunities of flying freeholds.
A flying freehold refers to a part of a property that overhangs or is situated above or below another property owned by a different owner. It typically occurs in terraced houses or buildings where part of one property’s structure extends over another.
Common examples include a room or balcony extending over a neighbouring property, a first-floor room above a shared passageway, or a building section extending over a different freehold property.
Owning a flying freehold can complicate property ownership due to shared maintenance responsibilities, potential access issues for repairs, and difficulties obtaining mortgages or insurance. Clear legal agreements are necessary to manage these responsibilities.
Obtaining a mortgage on a property with a flying freehold can be more challenging, as lenders may consider it a higher risk. However, some lenders are willing to provide mortgages if there are adequate legal agreements in place to address maintenance and access.
Before buying, check for existing legal agreements that define the responsibilities for maintenance and repair, ensure there is clear access for necessary repairs, and confirm that you can obtain a mortgage and insurance for the property.
Maintenance responsibilities are typically managed through legal agreements between the property owners. These agreements outline who is responsible for specific repairs and how costs will be shared. They are essential to avoid disputes.
An indemnity insurance policy for flying freeholds provides financial protection against potential legal issues arising from the unique ownership structure. It can cover costs related to legal disputes, repair access, and other complications associated with flying freeholds.
Disputes over flying freeholds can be resolved through negotiation, mediation, or legal action, if necessary. Clear legal agreements and indemnity insurance can help prevent and resolve disputes by outlining each party’s responsibilities.
Extending or altering a property with a flying freehold requires careful consideration and likely permission from the adjoining property owner(s). Legal agreements may need to be updated to reflect the changes and responsibilities for maintenance and repair.
Flying freeholds are relatively uncommon but not rare in the UK. They are more likely to be found in older buildings, terraced houses, and properties in densely built urban areas where space is limited and properties have been modified over time.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 11th July 2024.
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