The roof sits within one freehold title. It shelters two properties. When it leaks, does the owner of the roof pay, do both owners contribute, or must somebody go to court before anything can be repaired?
Those questions reached the Court of Appeal in Abbahall Ltd v Smee [2002] EWCA Civ 1831. The decision remains a valuable illustration of the practical weakness at the heart of some flying freeholds. A court may be able to provide a remedy after damage has occurred, but that is not a substitute for clear rights of access, repair and contribution in the title documents.
A roof, two freeholds and no agreed repair scheme
Abbahall owned the ground floor of a building. Ms Smee owned the upper floors and the roof under a separate freehold title. Her property projected over the ground floor, creating a flying freehold.
The titles contained no covenants regulating the relationship between the two owners. There was no agreed machinery explaining who should inspect the roof, arrange repairs, obtain access or divide the cost.
The roof deteriorated. Water penetrated the premises below and masonry created a danger. Abbahall obtained a court order permitting access to undertake works, but that order did not determine who should ultimately pay. The dispute continued after the county court required the upper owner to contribute only one quarter of the relevant repair costs.
What did the Court of Appeal decide?
The Court of Appeal held that the upper owner owed a measured duty to take reasonable steps in response to the known risk of damage to the property below. The duty was not absolute. It did not make her an insurer of the lower property or require her to maintain the roof entirely at her own expense.
The roof protected both properties. The appropriate works therefore benefited both freehold owners. On the particular facts, fairness and reasonableness required the cost to be divided equally.
The lower owner could not require the upper owner to fund the whole roof simply because the roof fell within her title. Equally, the upper owner’s financial circumstances did not justify reducing her share to one quarter in this case.
The court also imposed an important practical qualification. The upper owner was responsible for her proper contribution towards appropriate works that were carried out. The decision did not create a separate obligation to hand over money for work that would never take place. The lower owner still had to bear its own proper share.
The case did not create a universal 50/50 rule
The equal division reflected the shared benefit of this particular common roof. A different structure, different rights or a different allocation of benefit could produce a different result.
Owning the roof does not automatically mean paying for all of it
The physical location of a structure and the financial responsibility for maintaining it are not necessarily the same thing.
A roof may form part of the upper owner’s freehold while protecting both the upper and lower premises. A wall may belong to one owner while supporting another owner’s building. A passageway may sit within one title while providing essential access to both properties.
This is why a conveyancer cannot determine responsibility merely by identifying the red edging on the title plan. The deeds must be examined for rights, reservations, covenants and any mechanism governing inspection, access, repair and payment.
Where that machinery is missing, the owner may have to rely on general legal remedies after the relationship has broken down. That is more uncertain, slower and more expensive than operating a clear contractual scheme contained in the deeds.
A court remedy is not a title right
Abbahall confirms that nuisance and negligence principles may provide a remedy where one owner’s property presents a known risk to another. It does not mean that every flying freehold automatically carries:
- a permanent right to enter the adjoining property;
- a covenant requiring the neighbour to maintain their structure;
- a mechanism for approving the scope and cost of works;
- a right to recover every repair expense;
- a fixed formula for dividing costs; or
- an arrangement binding every future owner.
Abbahall obtained access by injunction after a dispute had already arisen. A purchaser would rather acquire a property with workable rights of support, shelter and access, together with enforceable arrangements for maintenance and contribution.
That distinction is examined in our earlier article on why a flying freehold can become a problem when selling or remortgaging. The existence of a possible remedy after water begins entering the building does not necessarily make the title acceptable to a buyer or mortgage lender.
Why this matters to a mortgage lender
A lender is interested in whether its security can be maintained, insured and sold. A flying freehold may expose that security to the conduct or cooperation of an adjoining owner.
The lender may want to know:
- the proportion and physical nature of the flying freehold;
- whether the title contains adequate rights of support and shelter;
- whether access is available for inspection, maintenance and repair;
- whether relevant obligations can be enforced against future owners;
- whether an indemnity policy is required or acceptable;
- whether the matter must be referred to the lender or valuer; and
- whether the arrangement affects valuation or resale.
Different lenders may impose different conditions. Their instructions can also change over time. Our analysis of changes to mortgage lender requirements for flying freeholds explains why the current handbook cannot automatically answer a question about an earlier purchase.
A statement that one lender is willing to proceed does not necessarily resolve the purchaser’s wider marketability risk. A future buyer may use a lender with a different policy.
Would indemnity insurance solve the leaking roof?
Flying freehold indemnity insurance may help address specified financial risks arising from defects in the title. Its precise protection depends on the policy wording.
Insurance does not physically repair a leaking roof, create a cooperative neighbour or necessarily provide the permanent access needed to inspect and maintain the structure. It may not satisfy every lender, and it should not be presented as though it recreates rights and covenants which the deeds do not contain.
The conveyancer must identify the underlying defect before deciding whether insurance responds to it. A policy addressing the absence of an enforceable covenant may not solve an immediate access dispute or disagreement about the scope and cost of repairs.
What should a conveyancer explain before exchange?
The Report on Title should connect the physical arrangement with the legal documents. It should not stop after labelling the property as a flying freehold.
Relevant questions include:
- Which part of the property projects over or beneath the adjoining freehold?
- Who owns the roof, wall or structure providing support and shelter?
- What express rights permit inspection, access, maintenance and repair?
- Do those rights benefit the property and bind the adjoining title?
- Who is responsible for routine maintenance and emergency works?
- How are costs assessed and divided?
- Can the obligations be enforced against future owners?
- What happens if a neighbour refuses access or cannot contribute?
- What does the proposed mortgage lender require?
- Could the arrangement restrict the pool of lenders or buyers on resale?
A bare warning that “the property has a flying freehold” does not enable a buyer to assess those consequences. Our article asking whether a client who signed the Report on Title actually understood the risk explains why identifying a legal fact is not the same as communicating its practical significance.
What solutions can be considered before purchase?
The appropriate response depends on the titles, the physical arrangement, the lender’s requirements and the willingness of the adjoining owner to cooperate.
Possible steps may include obtaining missing deeds, negotiating express rights, entering into new covenants, examining both freehold titles, referring the arrangement to the lender or valuer and considering suitable indemnity insurance. Each option has limitations.
A new deed may provide more useful protection than insurance, but it requires the neighbour’s agreement and careful consideration of enforceability against successors. Insurance may be quicker, but it does not rewrite the title or compel somebody to repair a structure.
The buyer should understand which problem the proposed solution addresses and which risks remain.
What if the roof problem emerges years after purchase?
An owner facing a leaking roof, an access dispute or a blocked sale should begin by establishing the physical layout and reviewing both the title documents and the precise objection now being raised.
The immediate transaction may require consideration of the condition of the structure, the neighbour’s title, the available repair route, insurance and the proposed lender’s current instructions.
The original purchase raises a separate historical question. The file may show:
- whether the flying freehold was identified;
- whether the adjoining title was examined;
- what rights and covenants were present or missing;
- what enquiries were raised;
- whether a deed or policy was obtained;
- what the original lender required; and
- what the purchaser was told about repairs, access and future resale.
Did the flying freehold only become a problem when you tried to sell or remortgage?
When I Bought explains which original purchase records may matter and why the advice given at the time deserves separate examination.
What did the original lender require?
Today’s lender instructions cannot establish the requirements applying when an earlier transaction completed. The lender may since have changed its wording, thresholds, referral process or insurance requirements.
The Lexsure Lender Archive flying freehold records provide a route to the dated Part 2 wording for the relevant lender and transaction date. That record should be considered alongside the complete lender instructions, mortgage offer, transaction correspondence and advice given to the buyer.
Check the historical lender position on LLA
Establish what the lender’s recorded Part 2 instructions said about flying freeholds on the date relevant to the purchase.
The expensive space between ownership and responsibility
Abbahall demonstrates that ownership of a roof does not automatically decide who should bear every repair cost. The Court of Appeal could allocate responsibility after examining the particular structure, benefit and circumstances.
For a buyer, however, the better question is not whether litigation might eventually produce a fair result. It is whether the title provides a practical way to inspect, repair and pay for the structure without first having to go to court.
That is the risk which should be identified, investigated and explained before exchange.
This article provides general information about flying freeholds and conveyancing in England and Wales. It is not legal, structural, valuation, mortgage or insurance advice for any particular property or dispute.