Does your house have wings?

30 November, 2015
by: Cripps Pemberton Greenish

Most people know the difference between a leasehold and freehold property, but sometimes a purchase isn’t quite so straightforward.

 

A flying freehold exists where one freehold property overhangs or projects into another. A common example would be above an archway to allow access between two properties; where a balcony protrudes on to another owner’s land; or where part of a bedroom of one house lies above the lounge of a neighbouring property.

 

In such situations, there should be adequate legal rights with the neighbouring property to cover such matters as a right of support, a right to enter on to the adjoining property to carry out repairs or maintenance works and an obligation on each respective owner to maintain and insure the part of the building within their ownership. Ideally, the title to each property will contain provisions requiring successive owners to enter into this agreement.

 

However problems often arise because the original title documents did not contain adequate rights, or because the obligations may have been lost over time (or may never have been in existence in the first place). Such defects may be alleviated if the adjoining owner is willing to enter into an agreement detailing obligations for both neighbours to adhere to. This would grant the necessary rights of support and protection, access for repair and maintenance and obligations on each property owner for maintenance and insurance. Although this would provide a solution to the problem, the other freeholder does need to cooperate (in practice this is not always the case).

 

When it comes to buying a property with a flying freehold, each mortgage lender has different requirements and rules. Some will not lend at all and are reluctant to accept a flying freehold as security for a mortgage. Others may lend if the appropriate legal rights as outlined above are contained in the title to the property and adjoining property.

 

The percentage of the flying freehold element in relation to the total floor area of the property may also be taken into account, not forgetting the potential requirement for flying freehold indemnity insurance.

 

Should you require indemnity insurance, be aware this will usually provide cover against loss in value to the property following lack of maintenance or repair by a neighbouring owner. It will also usually cover the cost to the owner of the flying freehold in taking legal proceedings against the adjoining owner. You also need to be aware indemnity policies do not remedy the defect in the title, they merely provide some protection should problems arise.

 

It is important to consider the implications of a flying freehold at the outset of any transaction. Your conveyancing solicitor will be able to look into the issue thoroughly for you and advise you in detail on considering the title carefully and area of the property affected.

 

As first seen in the Kent and Sussex Courier.