Flying freehold
Encyclopedia
Flying freehold is an English legal term to describe a freehold which overhangs or underlies another freehold. Common cases include a room situated above a shared passageway in a semi-detached house, or a balcony which extends over a neighbouring property.
In the law of England and Wales, originally a freehold property included the ground, everything below it and everything above it. By the 13th century, the courts had begun to accept that one freehold could overhang or underlie another. This concept was settled law by the 16th century.
Flying freeholds are viewed as a title defect, because they rarely have adequate rights of support from the structure beneath or rights of access to make repairs. This is an issue if, for example, scaffolding needs to be erected on the land beneath the flying freehold: the landowner's consent will be required and he may refuse, or want to charge a premium. If the work is necessary it may be possible to obtain a Court Order
under the Access to Neighbouring Land Act 1992, but there are costs and uncertainties involved, and the situation could be even worse if the structure beneath is unregistered land
and the identity of the owner is unclear.
There is a counterpart situation called a creeping freehold where similar issues arise. A creeping freehold is where, for example a basement or cellar belonging to one freehold underlies a different freehold at ground level. Works may be impossible without the consent of the freeholder above if any works could affect it, or need access to it.
These concerns mean that mortgage lenders and other finance providers tend to be wary of flying freeholds and may refuse to finance a purchase if the proposed security, or part of it, comprises a flying freehold. In cases where they will lend, they may require a title indemnity policy, which is a kind of insurance against problems arising from the flying freehold, or even demand that a deed of right of access be purchased.
Because of the various problems, nowadays flying freeholds are not created willingly, long lease
s being used instead.
In the law of England and Wales, originally a freehold property included the ground, everything below it and everything above it. By the 13th century, the courts had begun to accept that one freehold could overhang or underlie another. This concept was settled law by the 16th century.
Flying freeholds are viewed as a title defect, because they rarely have adequate rights of support from the structure beneath or rights of access to make repairs. This is an issue if, for example, scaffolding needs to be erected on the land beneath the flying freehold: the landowner's consent will be required and he may refuse, or want to charge a premium. If the work is necessary it may be possible to obtain a Court Order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
under the Access to Neighbouring Land Act 1992, but there are costs and uncertainties involved, and the situation could be even worse if the structure beneath is unregistered land
Unregistered land in English law
Unregistered land in English law is land that has not been registered with HM Land Registry. In unregistered land proof of title is based upon historical title deeds....
and the identity of the owner is unclear.
There is a counterpart situation called a creeping freehold where similar issues arise. A creeping freehold is where, for example a basement or cellar belonging to one freehold underlies a different freehold at ground level. Works may be impossible without the consent of the freeholder above if any works could affect it, or need access to it.
These concerns mean that mortgage lenders and other finance providers tend to be wary of flying freeholds and may refuse to finance a purchase if the proposed security, or part of it, comprises a flying freehold. In cases where they will lend, they may require a title indemnity policy, which is a kind of insurance against problems arising from the flying freehold, or even demand that a deed of right of access be purchased.
Because of the various problems, nowadays flying freeholds are not created willingly, long lease
Lease
A lease is a contractual arrangement calling for the lessee to pay the lessor for use of an asset. A rental agreement is a lease in which the asset is tangible property...
s being used instead.