The property has not changed. The room still sits above the neighbouring passageway. The title still contains the same flying freehold problem.
But the mortgage requirements may have changed several times.
That matters when a sale stalls, a remortgage raises unexpected questions or someone needs to investigate the advice given on an earlier purchase. A lender’s position today may be different from the position when the transaction took place.
Lexsure’s published analysis of historical mortgage lender requirements for flying freeholds puts figures behind that problem. Across its England and Wales records, it identifies 328 substantive changes concerning flying freeholds between 2009 and 2026, involving 122 lender brands.
Those 122 represent approximately 73% of the 167 lender brands covered in that jurisdiction. The figures describe Lexsure’s archive population, including historical lenders, rather than a survey of lenders currently accepting applications.
Why a flying freehold can become a mortgage problem
A flying freehold arises where part of a freehold property extends above or below land belonging to another owner. A room over a neighbour’s garage is one example.
The arrangement raises practical questions. Who maintains the supporting structure? What rights exist to enter the neighbouring property to carry out repairs? Can the necessary obligations be enforced?
For a mortgage lender, those questions concern the security it is being asked to accept.
Acceptance can depend on the extent of the flying freehold, the rights contained in the title, insurance, a valuer’s assessment or a referral to the lender. The answer needs to be checked against the particular lender’s applicable instructions.
These were changes with practical consequences
The distinction between a revised document and a changed requirement matters.
Lexsure’s figures exclude formatting amendments, updated contact details and wording changes with no identified practical effect. Its analysis counts changes affecting matters such as acceptance conditions, reporting obligations, title rights, indemnity requirements and thresholds.
The figures do not establish that lending became steadily more restrictive. A change could tighten a requirement, relax it or alter the process a conveyancer needed to follow.
What they establish is that relying on a lender’s present wording to explain an earlier transaction can be misleading.
“My lender accepted it” leaves another question unanswered
Consider a homeowner who bought with a mortgage ten years ago and is now selling. The buyer’s lender raises an objection to the flying freehold.
The homeowner’s reaction is understandable: how can there be a problem when a bank already lent on the same property?
Several explanations need to be considered. The lenders may have different requirements. The original lender may have changed its position. Conditions accepted on the earlier purchase may need to be examined again.
The earlier mortgage is part of the history. It does not settle the present enquiry or problem.
This is where mortgageability affects marketability. If fewer lenders will accept a property, some prospective purchasers may find it harder to finance the purchase. That does not make every flying freehold unsaleable, but it helps explain why an issue that appeared manageable at purchase can matter when the owner wants to move.
What were you told when you bought?
For the homeowner, the question often becomes more personal: did anyone explain what the flying freehold could mean for a future sale?
There is a difference between seeing the words “flying freehold” in a report and understanding the arrangement, the protection provided by the deeds and the implications of missing rights.
The original purchase papers may show whether the issue was identified, what enquiries were raised and whether insurance or additional legal arrangements were put in place. They may also show what the buyer was told before committing.
When I Bought, Lexsure’s homeowner-facing service, explores these questions in its guide to a flying freehold discovered after purchase. It considers both the immediate difficulty with selling or remortgaging and the earlier advice.
For an owner facing an unexpected obstacle, that is a useful starting point: would understanding the issue have changed the price they were willing to pay, prompted further investigation or affected their decision to proceed?
The answer does not establish a claim. It helps identify why the purchase history may deserve examination.
A historical investigation needs a historical starting point
For anyone reviewing an earlier transaction, the starting questions should be precise:
- Which lender was involved?
- Which jurisdiction applied?
- What date or dates are relevant?
- What did the lender’s written instructions require then?
- What does the conveyancing file show was done and explained?
Completion may be the initial search date, but an investigation could also need to examine the position at exchange or when the Certificate of Title was issued.
The lender’s requirements and the advice given to the purchaser are related lines of enquiry. Establishing the written instructions helps with the first. Understanding the second requires the purchase file, the circumstances and legal analysis.
Neither a subsequent mortgage refusal nor a historical change in requirements proves that a conveyancer was negligent.
Find the wording that applied
A useful historical enquiry needs more than a general statement that a lender “accepts flying freeholds”. It needs the applicable wording and the conditions attached to it.
The Lexsure Lender Archive’s flying freehold page explains its dated records, the scope of its change analysis and the options for retrieving an individual lender’s historical instructions or the wider market’s recorded requirements on the same date.
For a solicitor reviewing or defending a claim, that provides a source from which to establish the historical written position.
For a homeowner whose sale or remortgage is being held up, When I Bought’s flying freehold guide explains what records may matter and offers a way to arrange an initial conversation about what happened.
You do not need to know whether anyone was at fault before asking whether you received the right advice when you bought.