Flying freehold

A section of a freehold property that is structurally above another person's property and not contiguous with ground level. Flying freeholds arise when part of one property is built on top of part of another property and so the upper property owner does not own the building or land underneath the "flying" part.

Flying freeholds can occur, for example, where there is:

Some lenders are reluctant to accept a flying freehold as security for a mortgage. Essentially, a flying freeholder is subject to the risk that the subjacent owner may fail to maintain and repair its property, which may damage or prejudice the structure on which the flying freehold physically rests. A subjacent owner can be required to physically support and repair in relation to the freehold above it. However, this is not straightforward where freehold land is concerned because the burden (the obligation to observe a covenant) does not generally bind successors in title where a covenant is positive in nature.

However, some lenders are prepared to lend where there is a flying freehold provided that certain conditions are met. These include that the property must have all necessary rights of support, protection, and entry for repair as well as a scheme of enforceable covenants. Conveyancers acting for buyers of flying freeholds should refer to paragraph 5.7 of the UK Finance Mortgage Lenders' Handbook when acting for a lender.