What is the meaning of Flying Freehold?
Some of the terminology used in conveyancing can be confusing and difficult to interpret. Conveyancers sometimes get so used to the legal jargon that they will use it when speaking to clients, forgetting that they cannot be expected to understand.
One phrase that comes along from time to time, particularly in relation to terraced properties, is flying freehold (or sometimes creeping freehold). This might conjure up all sorts of images and ideas, though the truth is unfortunately not quite so interesting!
What is a Flying Freehold?
When a person owns a piece of land, he generally also owns everything “upward to the heavens and downward to the depths of the earth”. In practice this is subject to certain exceptions, most of which are not relevant for the purpose of this article. One exception that is relevant is where part of a neighbouring building overhangs, or flies over, the property boundary. The part that overhangs will sometimes be included in the title to the property to which it is attached, so that the boundaries of the two properties overlap.
A common manifestation of this principle is where there is a passageway between two neighbouring terraced properties at ground floor level but they are joined together at first floor level. Let’s call these properties 1 and 2 High Street. If the passageway is within the boundary of number 1 High Street but the room(s) over it at first floor level are part of number 2 High Street, then this part of number over the passageway is a flying freehold. Everything below and above the first floor belongs to number 1 but the first floor itself belongs to number 2.
What is a Creeping Freehold?
A creeping freehold works on just the same principle as a flying freehold but occurs where part of a building, instead of “flying over” a neighbour, “creeps” under it. In other words, if the cellar of a property extends under a neighbouring property then it is a creeping freehold. The neighbouring property owns everything from the heavens to the depths of the Earth except the cellar itself.
What is the Effect of Flying or Creeping Freehold?
As the owner of the property which encroaches does not own anything above or below the encroaching part, he needs to have a right of support and shelter from the neighbouring property. This means a right have the first floor supported by the ground floor of the neighbouring property (or in the case of rooms above a passageway, by the neighbouring property which it is attached to) or in the case of a creeping freehold, a right to be sheltered by the neighbouring property. Without these rights, there would be nothing to prevent the neighbour remove support causing a flying freehold to collapse.
He may also need rights of access to the neighbouring property to maintain his own as well as the benefit of a covenant by the neighbour to repair and maintain any structure providing support or shelter.
Flying Freehold Problems
Where the title to a property which is subject to a flying freehold does not have the benefit of the above mentioned rights and covenants it is considered defective because of the risks posed. The defect can be addressed either by a deed which creates the necessary rights and covenants or more commonly, with indemnity insurance. This is an insurance policy obtained by paying a one off premium which lasts for the lifetime of the property. Although it does not correct the defect, it does provide the owner with financial protection should it cause any loss to be suffered.
Flying freeholds usually account for only a small percentage of the total floor area of a property. In the event that a flying freehold makes up a larger than usual percentage however some mortgage lenders will not be prepared to lend of the property even if the necessary rights and covenants are in place if indemnity insurance is obtained. Typically the “tipping point” will be 50% of the total floor area of the floor which encroaches.
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