Flying and Creeping Freeholds

This article is about flying freeholds.  And no, we are not suffering from hallucinations in our office and seeing properties float past our windows.  Flying freeholds are a genuine legal term and can cause property owners considerable inconvenience if they do not fully understand the law surrounding them.

What is a flying freehold?

A freehold includes all the land below it and all the airspace above it, so two freeholds should not overlap.  A flying freehold is part of a building (which is a freehold ownership) which hangs over (or flies) over another freehold property.  An example includes a bedroom of one house that sits over the kitchen of another, or where the balcony of one property overhangs the neighbour’s garden.

Flying freeholds can also occur if part of the freehold property overhangs a communal area such as a common passageway.  Cellars which encroach on another property also fall into the definition of a flying freehold (these are sometimes referred to as ‘creeping freeholds’).

What sort of problems do flying freeholds cause?

English law does not cope well with flying freeholds, which is ironic because flying freeholds are by no means a modern invention; they usually occur in older properties.

Problems can occur from the outset, as a flying freehold may not be immediately identifiable from the title deeds.  In addition, a surveyor, although they may spot the flying or creeping freehold, may fail to alert the conveyancing solicitor due to a lack of knowledge about the legal issues that can arise with such properties.  In the case of Bashir v Ali[1], the auctioneer, who was a surveyor none the less, failed to spot the fact there was a studio flat on the ground floor of the property being auctioned.  This led to an expensive case which went all the way to the Court of Appeal.

Therefore, ideally, a good conveyancing solicitor who is dealing with an older, complex property which they suspect may involve a flying freehold should personally inspect the house.

One of the biggest issues associated with flying or creeping freeholds is it is virtually impossible for a freeholder to enforce a positive covenant against the owner of the other property.   Whilst the burden of a restrictive covenant goes with the land, responsibilities attached to a positive covenant (such as you must keep the part of the property which forms a flying or creeping freehold in good repair) does not.  Agreements to embark on a positive obligation must be made between each purchaser, resulting in such positive covenants being lost over time.

Ideally, both parts of the flying freehold should be protected and supported by the other, with owners having the right to enter or encroach on the other property (for example, by erecting scaffolding) to make repairs when required.  Fortunately, most landowners are eminently sensible and such arrangements are made informally and everyone rubs along happily.

Problems arise, however, when one freeholder refuses to grant the other access to make repairs or insist on charging a hefty fee for the privilege.

In addition, lenders may be reluctant to provide a mortgage on a property where the support and right of entry to make repairs cannot be confirmed.

How can I protect my best interests in relation to a flying or creeping freehold?

Obtain indemnity insurance

The easiest way to protect yourself is to take out defective title indemnity insurance.  This will cover any damage to your property which results from the other freeholder not keeping part or all of their home in good repair.  It can also cover any costs related to legal proceedings, should you have to take the other owner to court.

You must take all reasonable steps to negotiate with the other freehold a right of entry or to contribute to the repairs before you can claim on the insurance.  In addition, indemnity insurance would be of little use to developers, as policies usually contain an exclusion clause stating it will not provide cover in cases of alterations being made to the property.

Deed of mutual easements and covenants

By entering in a Deed of Mutual Easements and Covenants, the freeholders all agree to ensure parts of the building that make up a flying or creeping freehold are granted the necessary rights of support and protection.  In addition, entry is granted when needed for making repairs and an obligation is put on both parties to keep their property in a decent state of upkeep.

Access to Neighbouring Land Act 1992 

If the adjoining owner refuses to cooperate, the owner of the flying freehold may be able to obtain an access order from the court, under the Access to Neighbouring Land Act 1992, granting access for specific works of repair.  But bear in mind, this remedy is far from ideal.  It will not assist in the case of alterations or redevelopment, as the Act only applies to essential repairs. The court must be satisfied that the works are reasonably necessary for the preservation of the whole or part of the applicant’s property and without access to the neighbouring property they cannot be carried out or would be extremely difficult to carry out.

Converting to a leasehold

Here, the flying freehold and adjoining freehold are shifted into the ownership of both parties and long leases are granted to each freeholder containing the necessary rights and covenants.  The obligations will be binding on future purchasers.  As with entering into a Deed of Mutual Easements and Covenants, both parties must agree to the action being taken.

Concluding comments

There may be some hope on the horizon relating to the clarification around the rights and obligations of those with flying freeholds.  In 2011, the Law Commission published recommendations to simplify and modernise the law of easements and covenants.  However, little progress seems to have been made since then.

In the meantime, to avoid potential property disputes, it is crucial to instruct an experienced conveyancing solicitor, especially if you are purchasing an older property.  They will take the time to come and view the property in person, and ensure you will not be hit with any flying (or creeping) surprises.

Bennett Griffin are award-winning solicitors based in West Sussex with offices in central Worthing and Ferring.  Our experienced and specialist solicitors offer a comprehensive service and will work with you in an honest, considered, and practical manner.  Our residential property department is able to advise and assist you in relation flying freeholds.  Please contact us on 01903 229 999 or by email at info@bennett-griffin.co.uk for more information.

[1] [2011] EWCA Civ 707