A flying freehold exists when part of a freehold property overhangs or lies beneath another freehold property.
Common examples of this are: –
Part of a bedroom of one property lies above a kitchen or living room on the ground floor of a neighbouring property;
A balcony of one property extends over a neighbouring property;
Part of a bedroom overhangs an alleyway running between two properties.
What is the concern with flying freehold properties?
A property requires certain legal rights. In example 1 above, the first property requires a right of support for the bedroom from the kitchen or living room of the neighbouring property. The neighbouring property, in turn, requires a right of shelter for the kitchen or living room from the bedroom of the first property. If the kitchen or living room burnt down, it would not be able to support the bedroom above it and if the bedroom burnt down, it would leave the ceiling of the kitchen or living room exposed.
These rights can be adequately incorporated in a lease if, the property is leasehold however, with a freehold property, such rights are difficult to enforce as they are known as positive covenants. Positive covenants do not automatically transfer when properties are sold, and subsequent owners are not automatically bound by such covenants.
The main concern with flying freehold properties, is that one of the two property owners may fail to maintain their property which may cause damage to the neighbouring property.
Where a flying freehold element exists, both property owners require reciprocal rights of entry over the neighbouring property to carry out routine repairs and covenants imposed on each owner to insure their part of the building.
Will this be acceptable to my chosen mortgage lender?
The position varies from lender to lender. Some lenders will lend depending on the proportion of the flying freehold element, some will lend if there is flying freehold indemnity insurance in place (referred to below) and some, will not lend at all.
How can I proceed?
Provided your chosen mortgage lender is satisfied, flying freehold indemnity insurance can be obtained. This is the most common approach. Indemnity insurance provides financial compensation for loss or expense should any difficulties arise regarding support, shelter, repair and maintenance of the flying freehold element of the building. The benefit of an indemnity insurance policy can usually be passed on, on any subsequent sale of the property however, the policy doesn’t rectify the legal defect. Another solution would be to agree with the neighbouring property to amend the title of each property to contain the necessary mutual rights and covenants for maintenance, repair, support, shelter and insurance and to require each successive owner to enter into a deed of covenant so that the owners of each of the properties will always be bound to comply in the future.
Meaby & Co are lawyers experienced in all aspects of conveyancing. Should you require advice, please contact Varsha Varsani on 0207 703 5034.
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