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Conveyancing Solicitors regularly encounter house where there is a 'flying freehold' and this article seeks to explain some of the problems which may arise in connection with the purchase of such properties.
If you fear that there is a flying freehold element to the property you are buying you should notify your conveyancing lawyer as early on in the transaction as possible so that the issue can be addressed sooner rather than later.
Since many buyers need a mortgage, Conveyancing Solicitors have to bear in mind the requirements of mortgage lenders in deciding what is acceptable. Even when a buyer does not require a mortgage, Conveyancing Solicitors will still have to advise about anything which makes it difficult to obtain a mortgage on a property as this will affect its potential value and saleability.
In order for a flying freehold to exist, part of the freehold land you are seeking to purchase must overhang (or lie beneath) part of another person’s freehold property. This is fairly commonplace and exists where, for example, part of a bedroom of one house lies above the lounge of a neighbouring property, or overhangs a pathway or alleyway running between two houses. Sometimes the 'flying' element is very small, but the phrase really applies to part of the building which can be actually occupied, so for instance overhanging drain pipes or guttering are not counted. (these should have a right of 'eavesdrop' as it is known to Conveyancing Solicitors.)
The crucial word in all of this is 'freehold' as flying freeholds do not apply to leasehold properties. Also if there is a situation where the major part of one dwelling lies above another one then they will probably be better described as freehold flats on which different issues arise.
From the Conveyancing point of view, each property should have appropriate legal rights; for instance the upper property should have a right of support from the lower one, while the lower property should enjoy a right of shelter from the upper one. There should also be rights for each owner to enter the other property if this is necessary to carry out repairs or maintenance.
It is not much use having rights if the owner of the other property fails to maintain their part of the building. If you own the lower part and the other owner lets their roof collapse, you will want them to replace it or otherwise your home might get flooded. Each owner should be under an obligation to the other to maintain and insure their part of the building, but even if there were covenants in an original deed these will not benefit subsequent owners.
At present English law does not generally permit what are known as positive covenants or obligations to 'run with' the land and bind successive owners. The way to get round this in an ideal world is for the title of each property to contain provisions requiring each successive owner to enter into a deed of covenant so that the owners of each of the properties will always be bound by mutual obligations. However this is rarely encountered in practice.
If there is no enforceable provision in the deeds, there is some case law relating to owners rights which may benefit owners. One case that went all the way to the Court of Appeal is the case of Abbahall v Smee (2002). the Court decided that that the party who allowed the roof space to fall into disrepair and affect the property below did have a duty of care. However the costs of repairing the roof had to be borne by both parties as they would equally benefit.
The Access to Neighbouring Land Act 1992 contains provisions which enable owners to go onto a neighbour's land to carry out repairs to their own property. This may assist if there are no specific rights contained in the deeds, but the Act does not enable one owner to carry out works to the other owner's property. The Act requires a court access order to be obtained, and the person carrying out the work will probably have to indemnify the other owner against any loss, damage, or injury.
It is probably not advisable to rely upon a Court’s decision to give comfort in purchasing a flying freehold and advice from a Conveyancing Solicitor should be taken. There are lawyers who specialise in this field who would be able to assist in any question you have in respect of a flying freehold. In our experience, no two properties with a flying freehold issue are the same and specific advice should always be sought.
The attitude of lenders towards flying freeholds varies from lender to lender. Some lenders will lend depending on the proportion of the flying freehold element, some will lend if there is flying freehold indemnity insurance and some will not lend at all on flying freeholds.
Further information about lenders current requirements can be obtained from the Council of Mortgage Lenders website.
Flying freehold indemnity insurance is widely available for titles which are affected by flying freeholds. This particular indemnity insurance is available to any prospective purchasers (and often mortgagees) for inadequate cross covenants and repairing obligations.
Not all lenders are prepared to lend on flying freeholds, even with indemnity insurance. Therefore, your conveyancing solicitor will need to notify your mortgage lender that the property is a flying freehold.
Further information about indemnity insurance is contained in our article “Conveyancing Explained – How to Deal with a Flying Freehold”.
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