Property Conveyancing Law

Flying Freehold UK — What Landlords Need to Know

Flying freehold: part of one freehold property overhangs/underlies another separately-owned freehold; positive covenants don't bind successors (Rhone v Stephens [1994]); Halsall v Brizell [1957] benefit-burden principle; UK Finance Mortgage Lenders Handbook lender concerns; title indemnity insurance (single premium); deed of mutual covenant; commonhold conversion (CLRA 2002); Law Commission No 327 (2011) reform recommendations; TA6 disclosure; Scotland TC(S)A 2003 positive real burdens (no equivalent problem).

10 min readUpdated 7 June 2026Last reviewed: 17 May 2026flying-freeholdpositive-covenanttitle-insurancerhone-v-stephens

What Is a Flying Freehold?

Part of one freehold property physically overhangs, underlies, or passes through another separately-owned freehold. Classic examples: Victorian terrace upstairs room overhanging a neighbour's passage; shop-top residential flat above separately-owned retail unit; garage/extension extending under a neighbour's first floor; connecting bridge between two separately-owned buildings. 'Creeping freehold': cellar extending under a neighbour's land.

The Positive Covenant Problem

Rhone v Stephens [1994] 2 AC 310 (House of Lords): positive covenants (obligations requiring expenditure or action) do not bind successors to freehold title in English and Welsh law. Mutual maintenance agreements between original owners don't bind buyers. Right of support for land is a natural right; right of support for buildings must be expressly acquired as an easement. Halsall v Brizell [1957]: benefit-burden principle — successor cannot take a benefit without accepting the correlative burden — sometimes used to enforce mutual maintenance obligations.

Mortgage Lender Concerns

UK Finance Mortgage Lenders Handbook: conveyancing solicitors must report flying freeholds to lenders and obtain specific instructions. Many mainstream lenders accept title indemnity insurance; some decline entirely. Remortgage risk: initial purchase lender may accept but subsequent lender may decline. Portfolio landlords: some portfolio lenders may refuse affected properties.

Solutions

Title indemnity insurance: specialist single-premium policy; covers maintenance failure risk from neighbouring property; passes to successors on sale; lender named as co-insured. Deed of mutual covenant: express deed attempting to make maintenance obligations enforceable via Halsall v Brizell benefit-burden. Commonhold (CLRA 2002): permits positive obligations to run with units — rarely used in practice. Law Commission No 327 (2011): recommended reform of positive covenants; as at 2026, no legislation enacted.

Buying and Selling

TA6 disclosure: seller must disclose flying freehold. Conveyancing searches: identified from title register entries and boundary plan. Price discount: typically 5–10% below comparable non-affected stock. Physical survey: RICS Level 3 full structural survey — assess structural elements at the boundary. Scotland: TC(S)A 2003 permits positive real burdens to run with land — no equivalent problem.

Frequently asked questions

What is a flying freehold?+

A freehold where part of one property physically overhangs, underlies, or passes through another separately-owned freehold. Because positive covenants don't bind successors in English and Welsh law (Rhone v Stephens [1994]), mutual maintenance obligations between original owners may not bind buyers of either property.

Will a mortgage lender lend on a flying freehold?+

Many will, but require the flying freehold to be flagged and impose conditions — usually title indemnity insurance or documentation of mutual maintenance obligations. The UK Finance Mortgage Lenders Handbook requires solicitors to report flying freeholds to lenders. Some lenders decline entirely — always confirm before exchange.

What is the solution for a flying freehold?+

For most buyers and landlords: title indemnity insurance — a specialist single-premium policy covering the risk of maintenance failure by the neighbouring owner, acceptable to most lenders. A deed of mutual covenant with the neighbour (exploiting the Halsall v Brizell benefit-burden principle) is an alternative. Conversion to commonhold eliminates the problem but requires all freeholders' consent.

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