Flying Freeholds - don't let them go over your head

A flying freehold is not a regular occurrence and whilst it may sound like a mythical beast the reality is rather less magical.

A flying freehold refers to land that whilst owned outright (i.e. not as a leasehold interest) it does not touch the ground.

Examples include:

• A first floor that sits atop an adjoining owners ground floor
• A section of property located above an access way
• A balcony which protrudes over a neighbours’ property

So why should you be interested in flying freeholds or at least the implications of them? The answer is that the value of a flying freehold and indeed its structural integrity is inherently uncertain. The reason for this is that the owner of the land underneath your flying freehold may not satisfactorily maintain the very structure that supports your property. Additionally, even if you are aware of disrepair that needs to be remedied you are unlikely to have the right to enter the adjoining property to carry out repairs. This can be most easily imagined if you take the example of a first floor property that has been constructed above an existing ground floor owned by another entity.

Even if it appears that rights of support and access exist it is not guaranteed that these will be enforceable. Such rights would likely be provided by way of positive covenants, which will not bind a purchaser of the adjoining land.

The knock on effect of these risks is that many lenders are reluctant to accept flying freeholds as security. In the event that a lender will accept such property as security it will require a title indemnity insurance policy to cover the risk. Whilst this policy will provide comfort and is commercially an easier solution it will incur an additional cost and only provide funds in the event of damage rather than rectifying the defect in title.

When considering any purchase of property make sure the below doesn’t go over your head:

1. when viewing a property be sure to check for any areas that sit below a property but to which access cannot be provided;
2. ensure that title to the property is fully investigated by a solicitor to ascertain if any rights are enjoyed by the property and whether these are suitably protected; and
3. discuss the possibility of defective title indemnity insurance with your solicitor and ensure that any policy put in place benefits successors in title and mortgagees.