A flying freehold can appear manageable when the deeds contain rights of support and a promise requiring the neighbouring owner to maintain the structure. The difficulty is that finding a repair covenant in the deeds and being able to enforce it against the present owner are not necessarily the same thing.
Rhone v Stephens [1994] 2 AC 310 illustrates the problem. Although the case is not usually presented simply as a flying freehold dispute, its facts expose one of the principal legal risks associated with properties occupying different freehold parts of the same building.
One building, two freeholds and a shared roof
Walford House and Walford Cottage had originally formed part of the same property. When the cottage was sold separately, both properties continued to sit beneath a single roof.
The conveyance granted reciprocal rights of support. It also contained a covenant requiring the owner of Walford House to keep the relevant part of the roof wind and watertight. On its face, the document appeared to provide the cottage with valuable protection.
The problem arose after ownership changed. The cottage owners sought to enforce the repair covenant against a successor who had not personally entered into it.
Why did the repair covenant not bind the new owner?
The House of Lords confirmed the general rule that the burden of a positive covenant does not automatically run with freehold land.
A restrictive covenant may prevent an owner from doing something on the land. A positive covenant is different because it requires the owner to take action or incur expenditure, such as repairing a roof. Merely describing the promise as binding the original owner and successors in title does not necessarily make every future owner personally responsible for performing it.
The cottage owners also relied on the principle that a person should not be able to take the benefit of rights granted by a conveyance without accepting an associated burden. That argument failed because the reciprocal rights of support and the positive obligation to repair the roof were not sufficiently linked in the necessary way. The roof covenant remained an independent positive obligation.
The result was uncomfortable but important. The promise was written into the conveyance, yet it could not be enforced against the successor merely because that person had acquired the adjoining freehold.
Why this matters when buying a flying freehold
A buyer might reasonably be reassured by wording stating that a neighbour must maintain the roof, supporting wall, passageway or other shared structure. A conveyancer must look beyond the existence of the words and consider whether the obligation will remain enforceable as ownership changes.
The investigation should address questions including:
- Which part of the building belongs to each freehold owner?
- What express rights of support, shelter, protection and access have been granted?
- Who has promised to repair the relevant structure?
- Is the promise positive or restrictive?
- Can it be enforced against the present owner and subsequent owners?
- Is there an effective chain of indemnity or another mechanism supporting continued performance?
- What happens if the adjoining owner refuses access or cannot afford the work?
- Does the proposed mortgage lender accept the arrangement?
A statement in a Report on Title that the neighbour is responsible for repairs may therefore be incomplete. The buyer needs to understand whether that responsibility is practically and legally enforceable.
A covenant is not the same as a solution
The decision does not mean that positive obligations between neighbouring freehold owners are always worthless. Different arrangements may use direct covenants, indemnity covenants, rights conditional upon the payment of expenses or other legal structures intended to preserve enforceability.
However, each arrangement must be examined on its actual wording. A conveyancer should not assume that a repair obligation binds every future owner simply because it appears in an earlier conveyance.
This complements the lesson from the flying freehold roof dispute considered in Abbahall Ltd v Smee. In that case, the Court of Appeal considered responsibility for the cost of necessary roof works where the deeds did not provide an agreed repair scheme. Rhone v Stephens presents a different problem: the deeds did contain a repair promise, but the burden of that promise did not automatically bind a later owner.
Why a lender may still be concerned
A mortgage lender is interested in whether its security can be maintained, repaired and sold. The existence of a flying freehold can therefore raise questions about support, access, enforceability and the proportion of the property affected.
A lender may accept the arrangement subject to specified rights or insurance. Another may require referral or further documentation. Some may impose limits on the extent of the flying freehold they will accept.
Those requirements can also change. Our analysis of historical lender requirements concerning flying freehold mortgages explains why the fact that one lender previously accepted a property does not establish that another lender will accept it today.
Indemnity insurance may be relevant in some transactions, but it should not be treated as an automatic substitute for missing or unenforceable rights. The particular defect, the policy wording and the lender’s instructions all require examination.
What if the problem emerges when you sell or remortgage?
An owner may only discover the weakness years after completing the purchase. A buyer’s conveyancer might question the repair arrangements, or a new mortgage lender might refuse to proceed without further protection.
At that stage, the current problem and the original purchase should be investigated separately.
The immediate task is to establish what the title provides, what is missing and whether an acceptable solution is available. The historical question is what the original conveyancer identified and explained before the buyer committed to the purchase.
The original file may show:
- whether the flying freehold was identified;
- how the physical arrangement was explained;
- whether the enforceability of the repair covenant was considered;
- what the original lender required;
- whether insurance or additional documentation was obtained; and
- whether the buyer was warned about future repair, resale and mortgageability risks.
A later difficulty does not by itself prove that the original advice was negligent. It does, however, provide a sensible reason to examine what the purchaser was told and whether the legal protection described in the Report on Title was as effective as it appeared.
Did the flying freehold problem only emerge after you bought?
If a buyer, conveyancer or mortgage lender has now questioned your flying freehold, the starting point is to establish what was identified and explained during your original purchase.
Historical lender requirements may complete the picture
Where a mortgage was involved in the original purchase, the current lender handbook does not establish what the conveyancer was required to do at that time. The relevant historical wording may need to be considered alongside the mortgage offer, title documents, correspondence and Report on Title.
The Lexsure Lender Archive flying freehold records provide access to dated lender requirements and recorded changes. These records can help establish the written lending position applicable to an earlier transaction, although they do not determine by themselves whether there was a breach of duty or a recoverable loss.
The lesson from Rhone v Stephens
The central lesson is deceptively simple: a promise written into the deeds may not provide the protection a buyer assumes it provides.
With a flying freehold, the conveyancing investigation must connect the physical structure, the title rights, the repair obligations and their enforceability. The buyer should understand not only who is described as responsible, but what can actually be done if a future owner refuses to comply.
That explanation is important before exchange, not years later when the roof leaks or a buyer’s lender asks whether the covenant can be enforced.
Where the enforceability of the repair arrangements is now delaying a transaction, our practical guide explains what to examine when a flying freehold is discovered during a sale or remortgage.