What Is a Flying Freehold? UK Guide for Home Buyers

You’ve found somewhere lovely, the price is right, and the survey is back. Your conveyancer calls to say the words no buyer of a home in England or Wales wants to hear: “there’s a flying freehold.”

It’s not as scary as it sounds, but it’s never a straightforward decision. Fortunately, flying freeholds are common across England and Wales, and many people buy and sell properties with one every year. It’s all about knowing exactly what it is, what it means for your mortgage, and what you can do about it.

Here’s a guide to help you understand the situation.

Flying Freehold Definition: What Is a Flying Freehold?

A flying freehold occurs when part of a freehold property overlaps land belonging to somebody else.

In other words, part of your property “flies” over, or “tunnels under”, a neighbouring property and is not supported on land of your own. The most common example is a room built above a shared passageway, archway or garage. Technically, the “flying” part of your house is a freehold, not supported on a freehold.

Because a freehold should normally stand on its own land, a flying freehold can cause complications.

Flying Freehold Meaning in Simple Terms

If you’re struggling with the legalese, here’s a more everyday explanation.

Say there are two terraced houses opposite each other, with a narrow strip of land in between, providing access to rear gardens. A number of years ago, one of the houses was extended into this strip of land, creating a bedroom overlooking the alley. This bedroom belongs to the house over which it was built, but the land on which it is built (the alley) belongs to the house next door, or is shared between both.

The owner of the house overhanging the alley therefore owns a part of their property that is not on land they own, and they may need the permission of the owner of the land to make any structural alterations or repairs. It’s not a problem in itself, but it can cause issues if one party believes the other should pay towards the cost of repairs or alterations.

Flying Freehold Examples

To help you visualise a flying freehold, here are some of the most common causes in England and Wales.

1. Over a shared passageway

Common in Victorian and Edwardian properties, particularly where there is “tunnel back” access to the rear gardens. Part of a room, landing or staircase on the upper floors is built over a passageway.

2. Over a garage or driveway

Very common in modern developments. Part of a room (often a bedroom) or first floor on one house is built over the garage or driveway of the house next door.

3. An archway or carriageway

Older houses, particularly in market towns and city centres, sometimes have an archway to their side, leading into a yard. The rooms above the arch can form a flying freehold if the ground belongs to somebody else.

4. Extensions or overhangs

An upper floor extension built over a driveway or the house next door, or a bay or oriel window which overhangs the boundary, can form a flying freehold. Overhangs for minor items such as guttering are unlikely to be problematic.

5. Flats over shops

Where the freehold is split in a non-standard way, a flat on the upper floors may overhang a shop or another flat.

6. Underground

A cellar or basement which extends under a neighbour’s land can form a flying freehold.

You can usually spot a flying freehold by looking at the title plan (from HM Land Registry) and the property’s external walls. If the boundary on a plan appears to be anywhere other than the foundations or plinth of the property, it would indicate a flying freehold.

Why Do Flying Freeholds Matter?

There are three main areas of concern with a flying freehold.

1. Rights of support

In other words, if the “flying” part of your property is damaged or needs repairs, who is responsible for paying for it? A problem is only likely if the underlying property is also affected. In most cases, English law gives an implied right of support for your building from a neighbouring building, meaning the neighbour can’t simply knock down their part and leave you to pay.

2. Repairs and maintenance

The big question with rights of support is who pays for the repairs and maintenance. You can’t force your neighbour to pay for repairs unless there is a positive covenant in the deeds. The situation is complicated by a famous case, Rhone v Stephens (1994). In this case, the court ruled that although a positive covenant to repair a roof over the neighbour’s cottage might be enforceable while the covenantor occupied the property, the obligation to repair would not be binding on subsequent purchasers. In other words, just because the previous owner of the flying freehold agreed to pay for the repairs to the roof you’re going to inherit, it doesn’t mean you can demand they pay.

3. Access

You may need access to your neighbour’s land to carry out repairs. Unless there is a right of access clearly stated in the deeds, you are at the mercy of the neighbour’s goodwill.

It’s unlikely there will be a problem, but neither the law nor your mortgage lender will protect you if there is. Most people buy a property with a flying freehold without a second thought, but it’s important to understand the situation.

Flying Freehold Mortgage: Can You Get a Mortgage on a Property with a Flying Freehold?

You can, but it can be a bit more involved.

Most high street lenders will accept a flying freehold, but they may apply some restrictions and conditions to your offer, such as a limit on the amount of a property which can “fly”, a requirement for rights of support, repair and access, indemnity insurance or a deed of covenant.

Some lenders will be more flexible than others – the most competitive deals are often with lesser-known lenders, so a mortgage broker can be invaluable in helping you identify the right deal for your situation.

Some conditions you might encounter include:

• Rights of support, repair and access. Your conveyancer can check the deeds to see whether your property has positive covenants which would bind the neighbour and negative covenants (which would restrict you).
• Indemnity insurance. If the deeds are unclear, the lender may request indemnity insurance.
• Disclosure. Your solicitor has to disclose certain information to your lender under the UK Finance Mortgage Lenders’ Handbook, and flying freeholds are one of them.

For more non-standard properties, particularly those with complex construction techniques, some lenders may have tighter criteria, so again a mortgage broker can be extremely helpful in helping you avoid a wasted survey and legal costs.

Lenders often change their criteria, so it’s a good idea to check with your broker rather than a blog (including this one) for the most up-to-date information.

Flying Freehold Indemnity Insurance Explained

If you’re the buyer of a property with a flying freehold and the deeds are less than perfect, your solicitor might suggest indemnity insurance.

In short, indemnity insurance is a one-off payment which protects you if any financially damaging action is taken because of a defect in the property, such as the lack of a right of support or repair. You might find indemnity insurance useful if the neighbour refuses to contribute to costs which, in your opinion, should be shared.

Some pros and cons of indemnity insurance:

Pros

• Usually just a one-off fee. It can be an affordable way of protecting yourself, particularly as the cost will be significantly lower than the value of the property.
• Often assignable. This can make the house easier to sell in the future.
• Accepted by many lenders. Many lenders will be satisfied with indemnity insurance rather than requiring positive covenants in the deeds.

Cons

• Can’t take physical possession. Insurance only compensates you for financial loss. It won’t magically make your neighbour repair the roof.
• May not be needed. If your deeds are clear, you won’t need indemnity insurance.
• Conditions. You must not contact the neighbour about the defect before taking out the policy, or the insurer could argue that it doesn’t apply in this case.

Always consult your conveyancer about indemnity insurance – they will know the local practices and may be able to recommend a provider.

Can You Fix a Flying Freehold?

Sometimes, in addition to the above steps, you may want to look into permanent legal solutions, rather than one-off insurance. A flying freehold isn’t usually fixed by itself, although it can be resolved for good if both owners are willing to cooperate.

There are several options, depending on your situation and the willingness of the neighbour. You should always speak to your conveyancer before taking any action.

Deed of mutual covenant

Both parties enter into an agreement outlining their responsibilities. It’s ideal if the deed of covenant survives any sale, but due to the positive covenant issue, it may only be binding during the lifetime of the current owners.

Rentcharge

In some cases, a rentcharge can be used to create enforceable obligations against future owners. Note that the law surrounding rentcharge is complex and there are restrictions on creating new obligations.

Buy or sell land

If the land underneath the flying freehold is owned by the neighbour, you could buy it, or sell your land to them.

Title improvements

A solicitor may be able to help if there is uncertainty of ownership. If ownership of the land can be proved, HM Land Registry may be able to upgrade the title. The Law Commission proposed reforms to the law relating to positive obligations in 2011, but as it was written at the time of publication, this hasn’t happened yet, so don’t rely on it.

Should I Buy a House with a Flying Freehold?

Here’s our honest opinion. It depends. For many people it’s completely fine, but for others it is a deal-breaker.

It’s likely to be acceptable if:

• The flying freehold represents a small percentage of the house.
• The deeds state the rights of support, repair and access.
• Your mortgage lender is happy, or your broker has found one that is.
• Indemnity insurance is available and at a reasonable price.
• You get on well with the neighbour, or the neighbouring property and its owner are in good condition and amicable.

Think carefully if:

• The flying freehold encompasses a significant part of the house.
• The deeds say little or nothing about rights of support, repair and access.
• The neighbouring property is in disrepair, or you have bad relations with the owner.
• You have limited mortgage options and need to borrow a large sum to purchase the property.
• You intend to sell the property in the near future, as a flying freehold can limit your buyer pool.

Another good idea is to use the situation to your advantage. A flying freehold can reduce the number of potential buyers and lenders, so it’s reasonable to request a reduction in the asking price if additional surveys or legal fees are required.

Practical Steps Before You Buy

• Check the title plan early on. Ask your conveyancer to look at the Land Registry plan before you’ve spent a lot of money on surveys.
• Choose a conveyancer who is familiar with flying freeholds. They should pick up on it and be able to explain how it affects you.
• Speak to a mortgage broker. They can guide you towards lenders who accept flying freeholds.
• Get a survey. A surveyor can advise you if the condition of the “flying” part of the property is a concern.
• Ask about the neighbour. The seller may be able to tell you if there have been any disputes or if repairs have been shared amicably in the past.
• Consider indemnity insurance. Ask your solicitor if indemnity insurance is appropriate and, if so, when to take it out.

Is a Flying Freehold the Same as Leasehold?

No, and it’s a common misunderstanding. A leasehold is where you lease a property for a period of time, usually significantly less than freehold, and pay ground rent (and sometimes additional charges) to a landlord. A flying freehold is a freehold, so “ownership” is perpetual. The word “freehold” in “flying freehold” refers to the freehold ownership of the structure, not the land underneath.

Note that this article refers to England and Wales. The law in Scotland is different.

Frequently Asked Questions

Does a flying freehold reduce the value of a property?

Possibly. It can restrict the market and add cost and complexity to a sale, so some buyers may expect a discount. This can vary a lot, depending on the size of the flying element and the strength of the legal rights.

Will every lender refuse a flying freehold?

No. Many lenders will accept flying freeholds with conditions, such as percentage limits or indemnity insurance. A broker can help you identify the best options for your situation.

Can I extend or alter a house with a flying freehold?

You may need the consent of the owner of the land on which the “flying” part of your property sits. Always seek legal advice before doing building works of any sort.

Who pays for repairs to the flying freehold?

It depends on the deeds. If there is no enforceable obligation on the neighbour, you may be liable for the cost of repairs on your part of the property. Your indemnity cover may not extend to this.

Final Thoughts

A flying freehold might seem intimidating, but it’s more of a legal nuance than anything else. With the right conveyancer, mortgage lender and, where appropriate, indemnity insurance, many buyers purchase properties with flying freeholds and go on to live in them happily for decades. The most important thing is to do your research, ask the right questions and assess the risk carefully. If it all seems manageable, there’s nothing wrong with buying a lovely home with a flying freehold. If it feels like a risk to you, there will always be another house.

This article is for informational purposes only and should not be considered legal or financial advice. Always consult a qualified conveyancing solicitor and mortgage adviser.