My Buyer Pulled Out Over a Flying Freehold: Why Wasn’t It Found When I Bought?

A homeowner had owned a terraced house for 12 years when a buyer’s surveyor identified a possible flying freehold and potential encroachment involving a two storey rear extension. The buyer withdrew from the purchase.

The extension had already been standing for more than 50 years when the owner bought the property. The owner had purchased for cash but had instructed a conveyancer, commissioned a HomeBuyer survey and obtained searches. As far as the owner could recall, nobody had raised a concern about the physical arrangement or its relationship with the registered title.

More than a decade later, the owner was left asking whether the house could still be sold, whether a mortgage lender would accept it and why the potential problem had not been identified during the original purchase.

What did the buyer’s surveyor identify?

The property contained a shared two storey rear extension. Part was occupied by the seller and part by the neighbour.

The buyer’s surveyor observed that the upstairs bathroom appeared larger than the room beneath it. This raised the possibility that part of the bathroom extended over the neighbour’s part of the ground floor.

The surveyor also questioned whether part of the extension had been constructed outside the seller’s registered title and onto land belonging to the neighbour.

Those observations potentially raised two different issues:

• whether part of the building physically encroached onto land outside the seller’s title; and
• whether an upper part of the seller’s property extended over land or accommodation belonging to somebody else, creating a flying freehold.

The buyer withdrew before the precise physical and legal position had been established. It is therefore important to describe both issues as possible problems rather than proven title defects.

Encroachment and a flying freehold are not the same thing

An encroachment may exist where a structure has been built wholly or partly outside the land belonging to the property owner.

A flying freehold arises where part of one freehold property extends over or under another freehold property. A room above a neighbour’s room, passageway or other land is a common example.

The same physical arrangement might raise both questions, but they require separate investigation.

If part of the extension was built on the neighbour’s land, the seller may need advice about ownership and possession. If the bathroom formed part of the seller’s title but projected over the neighbour’s property, the investigation would focus on the extent of the flying freehold and the rights supporting it.

The label should not be selected before the title documents and physical arrangement have been compared properly.

Does the Land Registry title plan provide the answer?

Not necessarily. HM Land Registry title plans generally show the extent of registered land using general boundaries. They do not ordinarily establish the exact legal boundary line to survey precision.

A small apparent discrepancy between a physical wall and the red edging on a title plan does not, by itself, prove encroachment. Equally, a title plan should not be ignored where the building and the registered extent appear materially different.

The title plan must be read with the register and any conveyances, transfers, leases or plans referred to in it. HM Land Registry’s guidance on boundaries and title plans explains the difficulties involved in identifying the precise position of legal boundaries.

Where different parts of a shared extension occupy different levels, a conventional overhead plan may not reveal the full three dimensional arrangement. Measurements and a survey may be needed to establish whether the first floor follows the same division as the ground floor.

What should the seller investigate now?

The seller’s conveyancer and an appropriately qualified surveyor may need to assemble the physical and documentary evidence before proposing a solution.

Relevant material may include:

• the seller’s title register and title plan;
• the neighbour’s registered title and plan;
• historic conveyances, transfers and filed plans;
• planning and Building Regulations documents for the extension;
• the original purchase file and Report on Title;
• the survey obtained when the seller bought;
• the present buyer’s survey or written objection;
• internal and external measurements of both floors;
• evidence showing when and how the extension was constructed; and
• any agreement previously made between the neighbouring owners.

The immediate objective is to replace a broad allegation of “flying freehold and encroachment” with an accurate description of the physical layout, ownership and missing rights.

Could the house still be sold?

Potentially, yes. A flying freehold does not automatically make a property unsaleable or unmortgageable.

Some lenders will accept a flying freehold subject to conditions. Their requirements may concern the proportion of the property affected, the adequacy of rights in the deeds, the availability of indemnity insurance and whether the matter has been referred for approval.

Other lenders may take a more restrictive approach. A cash buyer may also decide that the practical relationship with the neighbouring owner is unacceptable even where no mortgage lender is involved.

An apparent encroachment presents a different problem. Before marketing the property again, the owner may need to establish whether the discrepancy is real and, if so, whether the title can be clarified or regularised.

The correct route could involve further evidence, a boundary agreement, a transfer of land, amendments to the titles or specialist advice concerning long possession. None of those outcomes should be assumed before the facts and registered titles have been examined.

What rights matter with a flying freehold?

The existence of an overlap is only the beginning of the investigation. The deeds should be examined for rights and obligations that make the arrangement workable.

Questions may include:

• Does the upper property have an express right of support?
• Are rights of shelter and protection adequately granted?
• Can the owner enter the neighbouring property to inspect or repair the structure?
• Who must maintain the supporting walls, roof and other shared structures?
• Can repair obligations be enforced against future owners?
• Is there a workable arrangement for sharing the cost of repairs?
• Could either owner alter the structure in a way that affects the other?

A flying freehold may be physically stable for decades and still concern a buyer or lender if the deeds do not contain adequate legal rights.

Our article on who pays for repairs where one freehold property shelters another illustrates why practical repair arrangements matter before a dispute arises.

Why did the problem not emerge during the cash purchase?

Because the original purchase was completed without a mortgage, there was no mortgage lender applying its own flying freehold requirements to that transaction.

That does not mean that a cash buyer required less careful advice. Future mortgageability and marketability may still be material to the decision to purchase and to the price the buyer is prepared to pay.

However, the absence of an original lender means that the transaction did not receive the additional review associated with satisfying a lender’s conveyancing instructions.

The position also demonstrates why successful completion does not prove that a property is readily mortgageable across the wider market.

Should the original conveyancer have identified it?

Possibly, but the later discovery does not establish that the conveyancer was at fault.

A conveyancer does not normally visit or measure the property. They investigate the legal title and depend on the client and surveyor to identify physical features that do not correspond with the documents.

If the deeds expressly showed that the upper floor extended over neighbouring property, the arrangement might have been apparent from the title. If the problem depended on noticing that the bathroom was wider than the utility room beneath it, that might not have been visible from the legal papers alone.

The original investigation should therefore consider:

• whether the title documents disclosed an overlap;
• whether the title plan appeared inconsistent with the property particulars;
• whether the seller disclosed the shared extension;
• whether the survey identified or should have identified the physical configuration;
• whether the buyer was asked to compare the plan with the property;
• whether enquiries were raised about the extension and the adjoining title; and
• what the Report on Title said about boundaries, additions and neighbouring structures.

The respective roles of the conveyancer and surveyor should be examined rather than assuming that every physical discrepancy is visible from the title documents.

Did the original survey miss the problem?

The owner reportedly commissioned a HomeBuyer survey when purchasing the house. The scope and wording of that report may therefore be important.

The report should be reviewed to establish:

• whether the surveyor inspected the extension;
• whether the unusual alignment was visible;
• whether any limitations affected the inspection;
• whether the surveyor commented on boundaries or neighbouring structures;
• whether further legal investigation was recommended; and
• whether the report warned that the title should be checked against the physical property.

The fact that the later surveyor raised a concern does not prove that the earlier surveyor should necessarily have reached the same conclusion. The condition of the property, information available, scope of inspection and applicable professional standards all require consideration.

Why present lender requirements do not answer the historical question

The buyer who withdrew may have intended to use a mortgage lender with particular flying freehold requirements. Another lender might have taken a different view.

Mortgage lender requirements also change. What lenders accept today does not establish how the wider lending market treated the same arrangement when the owner bought 12 years earlier.

The Lexsure Lender Archive flying freehold page provides access to dated lender requirements. Historical lender evidence may help show how mortgage lenders treated flying freeholds at the relevant time, although it is only one part of the investigation.

Because the original purchase was for cash, no particular lender’s instructions governed that transaction. The wider historical lending position may nevertheless be relevant to whether the property’s future mortgageability and marketability should have been considered.

Our earlier analysis explains how mortgage lender requirements concerning flying freeholds have changed.

What should the owner retrieve from the original purchase?

The owner should consider obtaining:

• the original conveyancing file;
• the client care documents and instructions;
• the contract and replies to enquiries;
• the title documents reviewed at the time;
• the original Report on Title;
• the HomeBuyer survey;
• planning and building control documents for the extension;
• correspondence about boundaries or neighbouring property; and
• any plan the owner was asked to approve.

Those records may show whether the configuration was known, whether further enquiries were indicated and whether the possible effect on a future sale was explained.

Our practical guide to a flying freehold discovered when selling or remortgaging explains the immediate steps an owner can take when a later transaction is already being delayed.

A failed sale is the beginning of the investigation

The buyer’s withdrawal caused a real financial and practical consequence, but it did not prove that the house could never be sold.

The seller first needed to establish whether the bathroom actually crossed the legal boundary, whether the neighbouring ground floor encroached in the opposite direction or whether the apparent discrepancy fell within the limitations of the available plans.

If a flying freehold existed, the next questions concerned its extent, the rights in the deeds and the requirements of a future buyer’s lender.

Only after those matters were understood could the owner make an informed decision about correcting the title, obtaining additional rights, considering insurance or remarketing with a clear explanation of the position.

This article provides general information only and does not constitute legal, surveying, land registration or mortgage advice. The existence and effect of a flying freehold, encroachment or boundary discrepancy depend on the physical arrangement, title documents and individual lender requirements. Time limits may apply to legal claims.