Whilst it may sound puzzling to the everyday property owner, a freehold title to a property can in fact fly. The term ‘flying freehold’ is used to describe freehold property which is structurally above another person's property and therefore not with ground level.
How to identify a flying freehold
In order to identify a flying freehold it must be clear that a property (or part of it) is built above property belonging to another, therefore leaving the owner of it with title to the upper part but no ownership of the lower part. The owner of the property underneath is often dubbed the ‘subjacent owner’. This is why it can be said that the owner of the top part owns that which “flies” over the other.
The following are typical examples of flying freeholds in residential property:
- A maisonette or house where part of the property extends over the tenure of the neighbouring property.
- A bedroom of a property which is situated above a shared passageway between neighbouring properties.
Do flying freeholds pose a potential problem?
In a nutshell, yes.
Many mortgage lenders are reluctant to accept a flying freehold as security for a loan. This is because if the subjacent land owner fails to maintain and repair their property, this could lead to it becoming damaged and ultimately compromising the structure of the flying freehold property.
However, lenders do not always adopt such a stringent approach. Where it is established that only part of a property is affected by a flying freehold, lenders will often be more lenient. This however will be subject to enforceable rights of entry, support, shelter and repair being in place.
A typical example of a flying freehold
What should I do if I think a property is a flying freehod?
If it appears that a property is subject to a flying freehold scenario, it would be prudent to take legal advice. And this need not be exclusive to potential buyers purchasing property with the aid of a mortgage. Even if you are a potential cash-buyer, future events such as the ability to resell need to be considered.
If you’d like to know more about flying freeholds in your transaction, call and speak to one of our experts on 0121 685 1234.
Daniel Clarke is a Trainee Solicitor based in our Weoley Castle office. You can telephone him on 0121 289 3724 or email him at firstname.lastname@example.org.