You have found a buyer for your flat. The buyer applies for a mortgage, and the conveyancer then raises a problem with the title: the flat itself is held freehold, with no lease. You may have lived there for years, perhaps with a mortgage of your own. Why has the tenure become an obstacle now?
If this has happened to you, start with When I Bought’s guide to freehold flats and problems selling or remortgaging. It explains the immediate difficulty and the separate question of what you were told before you bought.
Freehold flat or share of freehold?
The distinction matters. A flat sold with a share of freehold is generally held under a lease as well: the owner has a lease of the flat and an interest in the building’s freehold. A conventional freehold flat is held directly under its own freehold title, without a lease of that flat. Commonhold is another, separate arrangement.
A lease normally sets out who repairs and insures the building, who pays for shared work, and what happens when an owner does not comply. A freehold flat may have rights and agreements in its title documents, but whether they work against future owners needs close examination. In particular, an obligation to contribute to repairs does not normally bind successive owners of freehold land automatically.
Some Tyneside flats use a crossover lease: each flat owner holds a lease of their own flat and the freehold of the other. That is a different arrangement from a flat held freehold with no lease. If a buyer’s solicitor says the crossover leases need changing, ask which provision is defective and why; the label alone does not identify the problem. See also When I Bought’s guide to a defective lease discovered on sale.
This is why a buyer’s lender may question rights of support and access, buildings insurance, repairs and the enforceability of shared obligations. The exact title structure and the lender’s instructions matter. A freehold flat is not automatically impossible to sell, but it can limit the buyers who can obtain a mortgage.
But my lender accepted it when I bought
Your earlier mortgage is relevant, but it does not answer the buyer’s lender today. The lenders may have different requirements, an individual lender may have changed its position, or the arrangement accepted in your purchase may need to be checked against the present title and insurance position.
The issue can arise on a remortgage too. In a Property Tribes discussion, a contributor said in 2014 that a remortgage had been delayed for six months before they were told the proposed lender would not lend on what it called a “freehold flat”. The contributor also described a lease affecting the other flat in the building. The title documents and eventual outcome were not published, so the account illustrates why the precise ownership structure must be established; it does not prove that every freehold flat, or every freehold subject to another flat’s lease, is treated alike.
The Lexsure Lender Archive’s freehold flats page explains why a historical enquiry needs the lender’s requirements for the relevant date. Its dated records can help establish what the lender’s published Part 2 instructions said at the time. Those instructions are only part of the picture: the general instructions, mortgage offer, correspondence and original conveyancing file may also matter.
Earlier About Conveyancing posts recorded changes to HSBC’s freehold flat instructions in 2013 and Yorkshire Building Society’s position in 2014. They are dated examples of why the instructions in force at the time of a purchase can matter; neither post states what either lender will accept today.
What did your solicitor tell you before you bought?
This is the question the failed sale brings into focus. Obtain your purchase file, including the title documents, enquiries, mortgage papers and Report on Title. Look for answers to these questions:
- Did the title and report identify the flat as freehold, and explain how it differed from a leasehold flat with a share of freehold?
- What rights of support, protection and access existed, and what arrangements governed repair and insurance of the whole building?
- Were contributions to shared work enforceable against later owners, or was a further deed or insurance needed?
- Was any restriction on mortgage choice or future sale explained before you committed to the purchase?
- If you had a mortgage, what did that lender require at the time, and what was reported or agreed?
A Report on Title that simply uses the words “freehold flat” may raise a different question from one that explains the practical consequences. Equally, a buyer’s mortgage refusal years later does not, by itself, show that the original conveyancer did anything wrong. The documents, dates, lender and advice actually given need to be examined together.
The question matters even if you bought for cash. You may not have needed a lender’s approval at purchase, but future buyers may need mortgage finance. Ask what you were told about that resale risk. A low asking price or a long marketing period may have several explanations, so neither should be attributed to the freehold title without evidence.
What should you do about the current sale?
Ask your conveyancer to pin down the buyer’s lender’s precise objection in writing. Is the concern the tenure itself, missing rights, repair obligations, insurance, or a condition in that lender’s instructions? Confirm how the other flats and common parts are owned. Only then can you assess whether a title change, further documentation, a different lender or a different type of buyer is realistic.
A cash buyer may avoid a mortgage lender’s objection, but that does not repair a weak title or establish that a discounted sale is your only option. Nor does an indemnity policy necessarily create the missing repair or insurance obligations. The right approach depends on the building’s actual legal structure and the buyer’s objection.
Did you learn about the freehold flat only when your sale or remortgage stalled? Read the When I Bought freehold flat guide and tell us what happened when you bought. You do not need to decide whether anyone was at fault before making that enquiry.
This article concerns conventional freehold flats in England and Wales. Scottish flat ownership and commonhold use different legal frameworks.