A flying freehold can remain unnoticed for years and then bring a sale or remortgage to an abrupt halt. The property has not changed, but a new conveyancer, surveyor or mortgage lender may now be asking questions that were never raised, or never properly explained, when the property was bought.
For the owner, the discovery can feel bewildering. If a lender accepted the property before, why is it a problem now? The answer may lie in the wording of the title, the rights available between neighbouring owners, the requirements of the present lender or the advice given during the original purchase.
What is a flying freehold?
A flying freehold exists where part of one freehold property extends over or under land owned freehold by somebody else. A room above a shared passageway, accommodation over a neighbour’s garage and a cellar extending beneath a neighbouring property are familiar examples. Where one property extends beneath another, the arrangement is sometimes described as a creeping freehold.
The unusual physical arrangement is not necessarily the central problem. The more important question is whether the legal title contains the rights and obligations needed to make that arrangement work.
For example, the title may need to address:
- rights of support and protection from the adjoining structure;
- rights of shelter and, where relevant, weatherproofing;
- rights of access to inspect, maintain and repair the flying part;
- responsibility for maintaining the supporting structure;
- the ability to enforce relevant obligations against future owners; and
- insurance and reinstatement following serious damage.
If the deeds do not deal adequately with those matters, the concern is not merely theoretical. An owner may need access to a neighbour’s property to carry out urgent repairs but have no express right to enter. A lender will also want to know that the property offered as security can be maintained and sold.
Why has the problem appeared now?
The fact that a mortgage was granted when the property was bought does not guarantee that every future lender will accept it. Lenders have their own requirements, and those requirements can differ and change.
A previous lender may have accepted the extent of the flying freehold, the rights in the deeds and an indemnity policy. A proposed lender might require a referral, additional evidence or a different legal solution. The valuer may also have concerns about saleability even where the legal title appears manageable.
Our earlier analysis of changes to mortgage lender requirements for flying freeholds explains why the position at the original purchase cannot safely be reconstructed by looking only at a lender’s requirements today.
Fresh scrutiny can also expose an issue that was always present. On a sale or remortgage, the new conveyancer will review the title register, title plan and relevant deeds through the lens of the present transaction. A more detailed survey or a comparison with the neighbouring title may identify a physical arrangement or missing right that was not apparent from the register alone.
Mortgageability and marketability are connected
It is tempting to treat the question as a simple test of whether the current lender will lend. That is too narrow.
A property can satisfy one lender’s instructions and still present a future resale risk if other mainstream lenders take a different view. A buyer who can obtain a mortgage today may face a smaller pool of purchasers when they later sell. Good conveyancing advice should therefore consider both present mortgageability and longer term marketability.
This is also why a statement that an indemnity policy is available does not answer every question. Insurance may respond to defined financial loss in specified circumstances. It does not create missing access rights, require a neighbour to repair a supporting wall or guarantee that another lender will accept the property.
What should you do if a flying freehold is delaying the transaction?
1. Establish the physical and legal extent
Ask the conveyancer to inspect the title register, title plan and filed deeds. It may also be necessary to obtain the neighbouring title and compare the legal documents with the survey or the physical layout. The description “flying freehold” is only the starting point. The extent of the overlap and the rights already granted may materially affect the solution.
2. Identify the precise objection
Find out whether the difficulty comes from the buyer’s conveyancer, the mortgage lender, the valuer or a combination of them. Ask which right is considered missing and which lender instruction or valuation concern must be satisfied. A general statement that “the lender will not accept a flying freehold” may conceal a more specific and potentially manageable issue.
3. Check the particular lender’s current requirements
The conveyancer acting on a remortgage should check the proposed lender’s applicable instructions. On a sale, the buyer’s conveyancer should explain what the buyer’s lender requires. Older assumptions, a previous mortgage offer and another lender’s position are not substitutes for the current instruction.
This is one reason firms need a reliable process for keeping on top of changes to lender instructions. The acceptable response may depend on the lender, the facts and the date.
4. Consider the available legal solutions
Depending on the defect, the solution might involve a deed granting rights, a deed of covenant, amendments to the title arrangements or another agreement with the adjoining owner. That route may provide stronger practical protection than insurance, but it requires cooperation and careful drafting. It may also affect the timetable.
5. Treat indemnity insurance as one possible tool
Flying freehold indemnity insurance is often proposed because it may be arranged more quickly than a new deed. It should not be purchased on the assumption that it will satisfy every lender or cure every practical defect. The policy wording, lender requirements, exclusions and the underlying problem all need to be considered.
Do not approach the adjoining owner about a possible defect before taking legal advice. Contact can affect the availability of some indemnity policies. If a deed or other consensual solution is needed, the approach should be planned with the conveyancer.
6. Control the transaction timetable
The parties should be told what is being investigated, what information is outstanding and whether lender approval will be needed. An unexplained delay creates pressure to accept the first proposed solution. A clear written plan makes it easier to distinguish a solvable title issue from a lender-specific objection.
Should the issue have been explained when you bought?
A flying freehold will usually have existed when the owner purchased. If it is now producing unexpected expense, delay or a failed transaction, it is reasonable to examine the original conveyancing file.
Relevant material may include:
- the original Report on Title;
- the title register, plan and filed deeds obtained at the time;
- the survey and any correspondence about the physical layout;
- enquiries and replies concerning rights, repair and access;
- any indemnity policy or deed put in place;
- the mortgage lender’s instructions applicable at the relevant time; and
- the advice given about resale and remortgage risk.
The important question is not simply whether the words “flying freehold” appeared somewhere in the paperwork. It is whether the arrangement and its practical consequences were identified and explained sufficiently for the buyer to make an informed decision.
A present lender’s objection does not by itself prove that the original conveyancer was negligent. Requirements can change, lenders can differ and the present concern may arise from new evidence. Equally, the fact that the original lender advanced money does not establish that the buyer received adequate advice about future marketability.
Was the flying freehold only discovered when you tried to sell or remortgage?
When I Bought explains which purchase documents may matter, why today’s lender response may not answer what should have happened at the time and how to begin reviewing the advice you received.
The issue needs diagnosis, not a stock answer
A flying freehold is not automatically fatal to a sale or remortgage. Nor is indemnity insurance automatically sufficient. The correct response depends on the physical arrangement, the title rights, the proposed lender, the valuer’s view and the expectations of the buyer.
The immediate task is to identify the precise defect and the present lender’s concern. The separate historical question is whether the issue was properly investigated and explained when the property was bought. Keeping those questions distinct gives the owner the best chance of progressing the current transaction while also understanding why the problem came as a surprise.