Flying Freeholds And Overlapping Ownership

A flying freehold exists where part of one freehold property sits above part of another. The ownership is valid; the difficulty lies in what each owner can require of the other.

How the overlap arises

The commonest cause is a room built over a shared passage between two houses, so that one property's bedroom sits above ground belonging to its neighbour.

Conversions produce them too. A large house divided into separate freehold dwellings can leave rooms, staircases or cellars projecting under or over the neighbouring part of the original building.

Why the arrangement causes difficulty

The upper property depends physically on the lower one. Its floor is the neighbour's ceiling, and its stability rests on structure the owner does not own and cannot inspect at will.

That dependence would be unremarkable if each owner could compel the other to maintain their part. In freehold land, obligations requiring positive action are notoriously difficult to enforce against later owners.

So the original conveyance may have imposed clear repair duties, and those duties may have become unenforceable once the properties changed hands, leaving neighbours mutually dependent but without effective remedies.

Support, access and the rights that do survive

Rights that require a neighbour merely to refrain from doing something tend to survive better. A right of support, preventing removal of structure that holds up the upper property, is the important example.

Rights of access for repair may also exist, allowing an owner to enter the neighbouring property to maintain their own part. Whether such a right exists depends on the original documents.

Where no express right appears, some jurisdictions provide access procedures for necessary repairs. Those schemes differ substantially and carry their own conditions, so their availability cannot be assumed anywhere.

How lenders treat these titles

Lenders vary. Some decline outright, some accept the title where the overlap is small, and others require specific protections before treating the property as adequate security.

The usual condition is insurance covering the consequences of unenforceable obligations or of a neighbour refusing access, since the risk cannot be removed by drafting alone once the properties are separately owned.

What can be done about it

Where both owners cooperate, fresh deeds can be entered into recording repair and access obligations, supported by register restrictions so that future owners inherit the same commitments.

Where they do not, insurance is the usual fallback, and a seller who arranges it early avoids the delay of negotiating it during a transaction already under time pressure.

The right response depends on the extent of the overlap, the original wording and local law, so a conveyancer should review the title before any offer becomes a commitment.