Published 6 April 2022 | By FJP Investment Editorial Team

A flying freehold exists where part of one freehold property extends over or underneath land or a building belonging to a different freeholder.

Common examples include a bedroom built above a neighbour’s passageway, part of a house extending over an adjoining garage, or a cellar running underneath the property next door.

Flying freeholds are legal and are found in many older terraced houses, converted buildings and properties constructed around archways or shared passages. They do, however, create additional questions about structural support, access for repairs, maintenance obligations, buildings insurance and mortgage availability.

Buying a property with a flying freehold is not automatically a reason to withdraw. The important question is whether the title contains adequate rights and whether the physical and legal arrangements satisfy the buyer, surveyor, conveyancer, insurer and mortgage lender.

This guide focuses primarily on residential flying freeholds in England and Wales.

What is a flying freehold?

A flying freehold is part of a freehold building that is physically situated above or below land owned under another freehold title.

The expression “flying” does not mean that the structure is unsupported. It describes the way the legal ownership extends horizontally over or beneath somebody else’s land rather than following a simple vertical boundary.

Examples include:

• a room situated above a shared passageway;
• a bedroom extending over a neighbour’s garage;
• part of one terraced house positioned over part of the adjoining house;
• a balcony or upper storey projecting across a freehold boundary;
• a converted historic building divided into interlocking freehold properties; and
• a cellar extending underneath the neighbouring property.

The property above is commonly described as the flying freehold. A freehold area extending underneath another property is sometimes called a creeping freehold.

Flying freehold versus creeping freehold

A creeping freehold is essentially the below-ground version of a flying freehold.

For example, an older terraced house may have a cellar that extends underneath part of the neighbouring house. The cellar owner owns freehold property underneath land or a building owned by somebody else.

The practical issues are similar in both cases:

• which structure provides support;
• who must maintain each part;
• whether one owner can enter the other property to carry out repairs;
• whether alterations could affect the adjoining building;
• how the properties should be insured; and
• whether a mortgage lender will accept the arrangement.

Is a flying freehold the same as a leasehold property?

No.

A flying freehold remains a freehold interest. The owner is not simply occupying that part of the building under a lease from the adjoining owner.

That distinction is one reason flying freeholds can be more complicated than conventional leasehold flats.

A well-drafted lease can impose repairing, insurance and maintenance obligations that bind successive landlords and tenants. With neighbouring freehold properties, the burden of a positive covenant does not generally pass automatically to every future owner in the same way.

Conveyancers may therefore look for other legal arrangements intended to preserve mutual obligations when either property is sold.

Is a flying freehold the same as share of freehold?

No.

“Share of freehold” is normally used where leaseholders collectively own some or all of the freehold interest in a building, often through a company or joint ownership arrangement.

A flying freehold usually involves separately owned freehold titles that overlap physically. One property may rely on another for structural support or access even though there is no shared freeholder managing the whole building.

How do you find out whether a property has a flying freehold?

A flying freehold may be identified through:

• the title register and title plan;
• historic transfers or conveyances referred to in the title;
• information supplied by the seller;
• the property survey;
• the physical layout of the buildings; or
• enquiries raised during conveyancing.

The title may not use the expression “flying freehold” explicitly. The conveyancer may need to compare the legal documents with the physical layout shown in the survey or property plans.

For example, the title plan may show the general horizontal extent of the property but not make the vertical division immediately apparent. Older deeds or transfers may contain more detailed information about which parts of the building are included.

HM Land Registry explains that its register is the definitive record of registered ownership in England and Wales, although historic deeds can still contain useful additional information. Buyers should therefore allow their conveyancer and surveyor to consider the documents together rather than relying on one plan in isolation.

Are flying freeholds legal?

Yes. There is no general prohibition against owning or selling a flying freehold.

The difficulty is not usually the legality of the ownership itself. It is whether the titles provide adequate rights and obligations for two independently owned properties that are physically dependent on each other.

A flying-freehold arrangement may need to address:

• structural support;
• protection and shelter;
• access for inspection, maintenance and repair;
• maintenance of shared or adjoining structures;
• the route of drains, pipes and cables;
• reinstatement following damage;
• insurance responsibilities; and
• the process for dealing with disputes.

Why can flying freeholds cause problems?

Dependence on the neighbouring property

The flying part of a building may rely on the property below for support. Equally, the lower property may depend on the building above for shelter and protection from the weather.

If one owner neglects the structure or carries out unsuitable alterations, the effect may extend beyond their own property.

Access for repairs

An owner may need to enter the neighbouring property to inspect, maintain or repair the flying section.

Without an express right of access, the owner may have to obtain the neighbour’s permission whenever work is required. That may be straightforward while relations are good but more difficult after either property changes hands.

Our guide to property access rights and rights of way explains how access rights can affect the use and maintenance of property.

Enforcing repair obligations

The title may contain a positive covenant stating that an owner must repair, maintain or insure part of the building.

However, the burden of a positive covenant affecting freehold land does not generally run automatically with the land. In simple terms, wording that bound the person who originally signed the covenant may not always bind every later owner without an appropriate legal mechanism.

There are several legal techniques that may be used to support continuing obligations, including indemnity covenants, title restrictions and arrangements requiring future owners to enter fresh covenants. Their effectiveness depends on the documents and circumstances.

Insurance arrangements

Each owner may insure their own property separately, but damage to one part of the structure could affect both homes.

Potential difficulties include:

• different insurers reaching different conclusions;
• one property being underinsured;
• uncertainty about who is responsible for reinstatement;
• gaps or overlaps between policies; and
• a neighbour failing to maintain adequate insurance.

The buyer should disclose the flying-freehold arrangement accurately to their buildings insurer and confirm that the intended cover is suitable.

Mortgage and resale restrictions

Some mortgage lenders accept flying freeholds readily when the affected area is limited and the title contains satisfactory rights. Others apply stricter requirements or may refuse particular arrangements.

A property that is acceptable to one lender today is not guaranteed to satisfy every lender when it is remortgaged or sold in the future.

Can you get a mortgage on a flying freehold?

Yes, mortgages are available on many flying-freehold properties, but lender criteria vary.

The UK Finance Mortgage Lenders’ Handbook instructs conveyancers to check the individual lender’s requirements where a property contains or is affected by a flying freehold.

A lender may consider:

• how much of the property is affected;
• whether the flying section is structurally significant;
• whether the title provides adequate rights of support and protection;
• whether there is a legal right to enter the neighbouring property for repairs;
• whether repair and insurance obligations are enforceable;
• the condition and construction of the building;
• whether suitable indemnity insurance is available; and
• whether the arrangement could affect future marketability.

UK Finance guidance may also require the conveyancer to provide the lender with a plan clearly showing the area affected.

Buyers should tell their mortgage broker and conveyancer about a suspected flying freehold at an early stage. Waiting until shortly before exchange could lead to delays or the mortgage offer being reconsidered.

Do all lenders use the same flying-freehold limit?

No.

It is sometimes suggested that a lender will accept a flying freehold if it represents less than a particular percentage of the building. Although some lenders use percentage-based criteria, there is no universal limit applying across the mortgage market.

A small flying freehold is not automatically acceptable, and a larger one is not automatically unmortgageable. The rights, construction, condition and individual lender policy all matter.

The buyer’s conveyancer must check the requirements of the particular lender named in the mortgage offer.

What should the conveyancer check?

The conveyancer should investigate the arrangement in detail rather than simply confirm that a flying freehold exists.

Important questions include:

• What part of the property flies over or creeps under the neighbouring title?
• Does the registered title match the physical building?
• Does the property have an express right of structural support?
• Are rights of shelter and protection included?
• Can the owner enter the neighbouring property to inspect and carry out repairs?
• Who must maintain each wall, roof, floor, passageway or supporting structure?
• How are drains, pipes and other services dealt with?
• Are relevant covenants enforceable against future owners?
• Is there a restriction or chain of indemnity intended to preserve the obligations?
• Are there any previous disputes or known repair problems?
• Do the insurance arrangements provide adequate protection?
• Will the buyer’s mortgage lender accept the title?
• Would a deed or indemnity policy be required?

The answers determine whether the arrangement is routine, capable of being improved or potentially unsuitable for the buyer and lender.

Why is a building survey important?

The legal title cannot establish whether the supporting structure is physically sound.

A building survey can help identify:

• cracking or movement around the overlapping structure;
• damp or water penetration;
• problems with roofs, floors or supporting walls;
• unauthorised structural alterations;
• inadequate maintenance;
• access difficulties; and
• work that may be required after purchase.

A mortgage valuation is principally prepared for the lender. It is not a substitute for a survey commissioned for the buyer’s benefit.

The surveyor should be told about the suspected flying freehold so that they can examine the relevant parts of the building and comment on any practical limitations.

What rights should a flying freehold have?

The precise rights required depend on the building, but a satisfactory arrangement may include rights relating to:

Support

The flying property may need an express right to receive structural support from the walls, floors or other parts of the neighbouring property beneath it.

Shelter and protection

The property below may rely on the upper property for weatherproofing and protection. The title should be checked to establish whether appropriate rights and obligations exist.

Access

An owner may require access to neighbouring land or buildings to inspect, maintain and repair their own property.

Services

Rights may be needed for pipes, drains, cables and other services that pass through the adjoining property.

Repair and reinstatement

The legal documents may address responsibility for repairing supporting structures and reinstating the building following serious damage.

The existence of wording in a deed does not by itself establish that every obligation is enforceable against every future owner. The conveyancer must consider both the right and its enforcement mechanism.

Can the Access to Neighbouring Land Act help?

The Access to Neighbouring Land Act 1992 can, in certain circumstances, allow a property owner to apply to the county court for an access order.

The legislation primarily concerns work that is reasonably necessary for the preservation of the applicant’s land and cannot reasonably be carried out without access to neighbouring land.

It should not be treated as a convenient replacement for properly drafted access rights. A court application can involve cost, delay and uncertainty, and the Act does not provide an unrestricted right to enter a neighbour’s property for every alteration or improvement.

What is flying-freehold indemnity insurance?

Flying-freehold indemnity insurance is a title policy that may protect the owner and mortgage lender against specified financial losses connected with defects in the legal arrangement.

A policy might be considered where there is insufficient legal protection concerning access, repair or enforcement and the lender is prepared to accept insurance as a solution.

However, indemnity insurance does not necessarily:

• repair a defective building;
• force a neighbour to carry out maintenance;
• create a practical right of entry;
• resolve an existing dispute;
• cover every form of physical damage; or
• make the property acceptable to every future lender.

The scope, exclusions and conditions of the policy must be checked carefully.

Some title policies can be affected if the insured party contacts the neighbour or takes action concerning the defect before the insurer agrees. Buyers should therefore follow their conveyancer’s advice before approaching the adjoining owner about a proposed policy.

Can the title be corrected or improved?

Sometimes.

Depending on the problem and the neighbour’s cooperation, possible solutions may include:

• a deed granting rights of support, shelter, access or services;
• a deed clarifying repair and insurance responsibilities;
• an updated plan accurately identifying the affected areas;
• a transfer or boundary adjustment;
• a legal arrangement designed to preserve obligations on future sales;
• restructuring the ownership as leasehold in more complex buildings; or
• title indemnity insurance where acceptable.

Creating a new deed can require the cooperation of the neighbouring owner and both mortgage lenders. Each party may also need independent legal advice.

The best solution will depend on whether the problem is a missing right, an unenforceable obligation, an inaccurate title or a physical defect.

What if the neighbour refuses access for repairs?

Start by checking whether the title grants an express right of access and what conditions apply to it.

The right may require:

• reasonable notice;
• access only at reasonable times;
• making good any damage;
• limiting access to specified purposes; or
• indemnifying the neighbour against loss.

If no adequate right exists, the owner may need to negotiate access or obtain legal advice about whether a court application is available.

Entering the adjoining property without permission or lawful authority could create a separate dispute and should be avoided.

Does a flying freehold affect buildings insurance?

It can.

The insurer should be given accurate information about the construction and ownership arrangement. The owner should understand:

• which parts of the building their policy covers;
• whether the flying or creeping section is included;
• how rebuilding costs have been calculated;
• whether adjoining structures are separately insured;
• what happens if damage originates in the neighbouring property; and
• whether the mortgage lender has specific insurance requirements.

Buildings insurance and flying-freehold indemnity insurance perform different functions. Ordinary buildings insurance deals principally with insured physical damage, while title indemnity insurance addresses specified legal-title risks.

Should you buy a property with a flying freehold?

A flying freehold should prompt investigation, not an automatic rejection.

The purchase may be relatively straightforward where:

• only a limited part of the property is affected;
• the structure is in good condition;
• the title clearly defines the ownership;
• adequate rights of support, shelter and access exist;
• repair and insurance arrangements are workable;
• there is no history of disagreement;
• the buildings insurer is satisfied; and
• the mortgage lender accepts the title.

Greater caution may be appropriate where:

• a substantial part of the property is affected;
• the title does not match the physical arrangement;
• essential rights of support or access are missing;
• structural repairs are already required;
• the adjoining owner is uncooperative;
• there is an existing dispute;
• insurance arrangements are unclear; or
• the lender refuses to accept the title.

Can a flying freehold reduce property value?

Potentially.

A well-documented and physically sound arrangement may have little effect on value. A defective arrangement could reduce the pool of available buyers or mortgage lenders, increase conveyancing costs and make a future sale take longer.

The effect depends on:

• the proportion and importance of the affected area;
• the condition of the building;
• the rights contained in the title;
• mortgage availability;
• insurance availability;
• any history of disputes; and
• local demand for the property.

A surveyor can advise on the property’s condition and valuation implications, while the conveyancer advises on the title.

Selling a property with a flying freehold

A seller should avoid waiting until late in the transaction to address the flying freehold.

Useful preparation can include:

• obtaining the title register, plan and relevant deeds;
• identifying the precise area affected;
• collecting any deeds relating to support, access or repairs;
• providing details of buildings insurance;
• disclosing any previous disputes;
• checking whether an existing indemnity policy can pass to the buyer; and
• asking the conveyancer whether any title issue should be addressed before marketing.

Early preparation gives the buyer’s conveyancer and lender more time to assess the arrangement and reduces the risk of an unexpected delay before exchange.

Frequently asked questions

Is a flying freehold a serious problem?

Not necessarily. Many flying-freehold properties are bought, sold and mortgaged without major difficulty. The seriousness depends on the title rights, enforceability of obligations, building condition, insurance and lender requirements.

Can you get a mortgage on a flying freehold?

Yes, but lenders apply different criteria. The conveyancer must check the requirements of the buyer’s chosen lender and report the arrangement where required.

Does a flying freehold need indemnity insurance?

Not in every case. A lender or conveyancer may recommend a policy where the legal rights are insufficient, but insurance does not correct every defect or replace practical access and maintenance arrangements.

Who pays for repairs to a flying freehold?

The answer depends on the title documents, covenants and nature of the repair. There is no universal rule that automatically divides every cost between the two owners.

Do title deeds always mention a flying freehold?

No. The title may describe the ownership without using that expression. The arrangement might instead be identified by comparing the register, plans, historic deeds, survey and physical layout.

What is a creeping freehold?

A creeping freehold is freehold property extending underneath land or a building owned by somebody else. A cellar beneath the neighbouring house is a common example.

Can a neighbour refuse access for maintenance?

If the title grants an enforceable right of access, the neighbour must normally respect that right subject to its conditions. Without an adequate right, permission, negotiation or a court application may be necessary.

Can a flying freehold be removed?

Sometimes the ownership can be restructured or the titles adjusted, but this can require cooperation from both owners, their lenders and legal advisers. In other cases, the ownership remains in place while missing rights are improved.

Final thoughts

A flying freehold is an unusual ownership arrangement rather than an automatic property defect.

What matters is whether the legal title and physical building work together effectively. The owner may depend on another property for support, shelter, access, maintenance or services, so those matters need to be understood before exchange.

Prospective buyers should involve their conveyancer, surveyor, mortgage adviser and insurer early. Confirm the area affected, review the relevant rights and obligations, investigate the building’s condition and make sure the chosen lender accepts the arrangement.

Where the documentation is clear and the structure is sound, a flying freehold can be entirely manageable. Where essential rights are missing or the building already presents problems, the buyer should understand the cost and resale implications before proceeding.

This article provides general information and does not constitute legal, surveying, mortgage or insurance advice. Flying-freehold arrangements depend on the individual title and building.