To know whether a property can be referred to as a flying freehold is not as obvious as it may seem. Therefore, a potential buyer of property should inspect the property with the services of a surveyor and solicitor.
The surveyor inspects the property physically assessing the section of the building that has brought about a concern. As for the solicitor, they will be the one to advise on the title deeds. The solicitors tend to be extremely cautious when dealing with flying freeholds. This is the case as from a legal point of view, dealing with such a property can be problematic raising complex legal issues. This is because there may be a lack of agreement between the two freeholders.
Several rights come along with owning such a property. These rights include rights of access, rights of support, and shelter. These rights are essential. The rights of access give you the right to access a neighboring property to carry out repairs. The rights of support and shelter protect the building that has a freehold that protrudes to the adjoining property.
This is because the freehold owner of the other property may choose to demolish their structure without considering whether the fallen structure was acting as a pillar to the property that extends.
If this happens, the foundation of the structure is weakened and compromised. You can know if a property has the rights mentioned above as they will be indicated on the title deed together with other rights and responsibilities that the freeholder is legally obligated to follow.
Where these rights are not included in the title deed, a Covenant and Deed of Grant can come in handy. Also, an indemnity policy can be considered a solution.
The indemnity insurance covers property that either lies over or under a neighboring occupied property. This insurance will protect you against forcing your neighbor to offer support and protection for repair.
The Covenant and Deed of Grant ensure that the correct covenants and rights have been noted and granted on the title deed. The problem is that flying freeholds rarely benefit from adequate rights of support, rights of shelter, and rights of access. Without specific rights of support from the property beneath the flying freehold or rights to shelter from the property above, the owners of those properties could technically demolish their adjacent or subjacent buildings without any consideration for the flying freehold.
This could severely compromise the structure of the flying freehold. Likewise, if these neighbouring properties were not obligated to repair and maintain the structure on which the flying freehold relies, structural problems could arise. Of course, this person is perfectly within their rights to deny access or even to charge a premium for access.
You will need to carefully read the title deed for the flying freehold to discover whether you have rights of support, rights of shelter, and rights of access. The title deed will also provide you with a range of other rights and responsibilities that are the legal obligation of the freeholder.
It is advisable to employ the services of a property law solicitor to read and assess the title deed if you are at all unsure about any of the terms. The most common reason for not having the above rights written into the title deed is because the original conveyancers did not consider the need for such rights. However, it is also possible that the obligations have been lost over time as a result of technical legalities in relation to positive covenants.
In respect of property, covenants, which can be either positive or restrictive, are used to describe conditions tied to the land. Positive Covenants require a form of expenditure, for example, paying maintenance costs for a shared driveway.
Therefore, in order to maintain a positive covenant, each new purchaser would need to enter into a deed of covenant to observe and perform the positive obligation.
There are several actions you can take if you find that your flying freehold does not benefit from rights of support, shelter, or access. These include purchasing indemnity insurance, entering into a Deed of Covenant, converting the building to leasehold, or using the Access to Neighbouring Land Act Flying freehold indemnity insurance is widely available for a few hundred pounds and will provide cover for the inability to force your neighbour to repair for the support and protection of your property.
This includes where the adjoining premises are uninsured or inadequately insured. Thus, they are more likely to grant a mortgage on a flying freehold when indemnity insurance has been put in place. However, mortgage companies have differing views on lending on flying freeholds, so it is advisable to have this confirmed ahead of any agreement to purchase. Entering into a Deed of Covenant to vary the title deeds of your property is the ideal solution for a flying freehold.
This would allow you to ensure that the property benefits from the correct rights and covenants and that the owners of each adjoining or subjacent property will always be bound by mutual obligations. However, any such alterations would need to be mutually agreed with your neighbour before they can be added and registered on the deeds for both properties.
It can also be a lengthy and expensive process, but well worth it if you can see it to fruition. By converting the flying freehold to leasehold, the necessary rights and covenants can be added to the new, long lease of up to years. It can also be the case with maisonettes a flat with its own outside entrance. For example, a room in one property might be situated above a room belonging to the neighbouring property.
With some terraced properties, there might be a flying freehold over a shared passageway, archway or alley. Some houses may have basements or cellars that go underneath neighbouring properties. With freehold property or land, there is a presumption that it includes the surface and everything below and above it — e.
But with a flying freehold, part of a property overhangs or lies beneath another property. If you own a freehold property, you alone will be responsible for its maintenance and repairs. This makes freehold fairly straightforward from a maintenance point of view. But with a flying freehold, your property may be dependent on the neighbouring property for structure and support.
Ideally, where a flying freehold exists, the owners of both properties will be obligated to each other to maintain and insure their part of the property to ensure consistency.
A conveyancer may raise concerns if there is a lack of positive covenant enforcement one freeholder may have over another. For example, one owner might refuse access to their property which prevents work being done on the neighbouring property. With some flying freeholds there might be a grey area when it comes to who is responsible for the maintenance of the flying freehold section of the property.
For example, a leaking roof on the overlying property could impact the underlying property.
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