A flying freehold arises wherever part of one freehold property physically extends over, under, or through a separately-owned freehold — for example, a Victorian terrace bedroom overhanging a neighbour's passageway; a room built out over an adjacent garage; or a bridge connecting two buildings across a gap. Unlike leasehold, there is no landlord to impose repairing obligations and enforce them through forfeiture. The fundamental problem is that, at English and Welsh common law, positive covenants (obligations to do something — maintain a wall, repair a roof) do not automatically bind successors to freehold title (Rhone v Stephens [1994] 2 AC 310). An owner of a property that supports a flying freehold cannot be compelled by their successor to continue maintaining structural support. This creates mortgage lender concern, title uncertainty, and potential for physical dilapidation.
What Is a Flying Freehold?
A flying freehold exists when a portion of one freehold property overlaps vertically with a separately-owned freehold. The term 'flying' reflects that part of the property flies — it extends through airspace owned by someone else, or is supported by structures on someone else's land. Common examples include: Victorian terraced houses where an upstairs room extends out over the passage or alleyway between houses; properties where a garage or utility room extends under a first-floor room belonging to a neighbour; shop-top flats where the residential freehold is above a retail unit owned separately; and bridge walkways connecting two separate buildings. Flying freeholds can also arise on the underside — a cellar extending under a neighbour's garden is a 'creeping freehold'. Both create the same legal problems.
- Classic example: Victorian terrace upstairs room overhanging a neighbour's side passage — structurally interdependent with the neighbour's property
- Shop-top flat: residential freehold above a separately-owned retail unit — mutual roof/floor maintenance obligations potentially unenforceable against successors
- Garage/extension: ground-floor extension overhanging or under-passing a neighbour's property boundary
- Bridge: connecting walkway between two separately-owned freehold buildings
- Creeping freehold: cellar extending under a neighbour's land — same legal problems as flying freehold above ground
The Positive Covenant Problem
The legal root cause of flying freehold difficulty is the English and Welsh common law rule that positive covenants — obligations requiring expenditure or action — do not run with the burden of freehold land to bind successors (Rhone v Stephens [1994] 2 AC 310, per Lord Templeman). When the original developers of adjoining properties covenant with each other to maintain their structural contributions — to keep up the supporting wall, maintain the roof, repair the party structure — those obligations bind the original covenanting parties. But when either property is sold, the positive obligation does not automatically pass to the buyer. The buyer takes free of the burden. This leaves the owner of a flying freehold with no legal mechanism to compel the neighbour-successor to maintain structural support. The right of support for land is a natural right, but support for buildings must be expressly acquired as an easement — and a right of support, even if properly granted, does not compel the burdened owner to maintain supporting structures in good condition.
- Rhone v Stephens [1994]: House of Lords confirmed positive covenants do not bind successors to freehold title in English and Welsh law
- Natural right of support for land: exists automatically; but support for buildings must be acquired as an easement — and gives no right to compel maintenance
- Original covenant: original parties bound by covenant to maintain; but on sale of either property, buyer takes free of positive burden
- Halsall v Brizell [1957]: benefit-burden principle — successor cannot take a benefit without accepting the correlative burden; used to enforce mutual maintenance obligations in some flying freehold cases
- Scotland: different — TC(S)A 2003 permits positive real burdens to run with land; Scottish law avoids this problem; no flying freehold concern in the same way
Mortgage Lender Concerns and the UK Finance Handbook
Many mainstream mortgage lenders will not lend on a flying freehold or on a property that is subject to (or supports) a flying freehold, without additional safeguards. The UK Finance Mortgage Lenders Handbook (the standard requirements for residential conveyancing solicitors acting for lenders) requires solicitors to report the existence of a flying freehold and obtain specific lender instructions. Some lenders accept title indemnity insurance; others require that mutual repairing obligations are enforceable (typically by incorporating them in a deed of mutual covenant or via commonhold); others simply decline. Landlord-investors acquiring flying freehold buy-to-let properties — particularly Victorian terraces — should confirm lender appetite before proceeding, as a subsequent remortgage or sale may be complicated if the lender changes position.
- UK Finance Mortgage Lenders Handbook: requires conveyancing solicitors to report flying freeholds to lenders and obtain specific instructions
- Lender variability: some lenders accept title indemnity insurance; others decline entirely; confirm with the lender's solicitor before exchange
- Remortgage risk: even if initial purchase lender accepts, a subsequent remortgage lender may decline — impairing the landlord's ability to access equity or switch products
- Buy-to-let specific: portfolio landlords should note that a flying freehold property may be unacceptable to some portfolio lenders even if acceptable to the purchase lender
- New build: developers should not create new flying freeholds; for modern properties, the issue is more common on Victorian-era terraced housing stock
Title Indemnity Insurance and Practical Solutions
For most flying freehold situations, the practical solution is specialist title indemnity insurance. A policy covers: the risk that structural maintenance of the neighbouring property is not carried out, causing damage to the flying freehold; the risk that rights of access for maintenance cannot be agreed; and the risk that the mortgage lender later takes an adverse view. Policies are single-premium and pass to successors on sale, with the lender also named as a co-insured. Premiums depend on the extent of the overhang, the age and construction of the property, and whether mutual maintenance obligations are expressly documented. Alternative solutions include: entering a deed of mutual covenant with the neighbouring freeholder that attempts to make maintenance obligations enforceable via the benefit-burden principle; converting to commonhold (which permits positive obligations to run with units); and — where the neighbouring property is a leasehold flat — negotiating a lease term that includes structural maintenance.
- Title indemnity insurance: specialist policy covering maintenance failure risk; single premium; passes to successors; lender named as co-insured
- Deed of mutual covenant: express deed attempting to make maintenance obligations enforceable via Halsall v Brizell benefit-burden mechanism — specialist conveyancers required
- Commonhold: converting to commonhold (CLRA 2002) eliminates the positive covenant problem — but requires consent of all affected freeholders and any lender; rarely used in practice
- Express easements: right of support and right of access for maintenance should be expressly granted in conveyancing documentation to give the clearest possible position
- Law Commission reform: Law Com No 327 (2011) recommended reform of positive covenants; as at 2026, no legislation enacted — the positive covenant problem persists
Buying and Selling a Flying Freehold Property
Sellers of properties with flying freeholds must disclose the position in the TA6 property information form and/or the NTSELAT material information requirements. A buyer's solicitor conducting standard conveyancing searches will identify a flying freehold from the title register entries and the property description. On identification: the solicitor should report fully to the buyer and their mortgage lender; obtain title indemnity insurance quotations; review any existing mutual covenant documentation; and check the physical condition of the relevant structural elements. Buyers should factor in the additional costs (indemnity insurance, specialist legal advice) and the potential restriction on future mortgage options. For landlord-investors, the risk is also that flying freehold properties are harder to sell and may achieve a discount to market — typically 5–10% below comparable non-flying-freehold stock, depending on lender acceptance in the local market.
- TA6 disclosure: seller must disclose flying freehold in the property information form — failure to disclose may give rise to a misrepresentation claim
- Conveyancing searches: flying freehold identified from title register entries and boundary plan — buyer's solicitor must report to lender
- Price discount: flying freehold properties typically achieve 5–10% discount to comparable non-affected stock — reflect this in purchase price negotiation
- Physical survey: commission a full structural survey (RICS Level 3) to assess the condition of structural elements at the boundary with the neighbouring property
- Specialist solicitor: instruct a conveyancer experienced with flying freeholds — standard practice may not address all the nuances of the specific arrangement
Frequently asked questions
What is a flying freehold?+
A flying freehold exists where part of one freehold property physically extends over, under, or through a separately-owned freehold. The classic example is a Victorian terrace upstairs room overhanging a neighbour's side passage. Because positive covenants (maintenance obligations) do not automatically bind successors to freehold title in England and Wales (Rhone v Stephens [1994]), flying freeholds create maintenance and mortgage enforcement problems.
Will a mortgage lender lend on a flying freehold property?+
Many mainstream lenders will lend, but require the flying freehold to be flagged and will impose conditions — usually title indemnity insurance or specific documentation of mutual maintenance obligations. Some lenders decline entirely. The UK Finance Mortgage Lenders Handbook requires conveyancing solicitors to report flying freeholds to lenders. Always confirm lender appetite before exchange.
Do positive covenants bind successors on a flying freehold?+
Not automatically in England and Wales — this is the core problem. The House of Lords in Rhone v Stephens [1994] confirmed that positive covenants do not bind successors to freehold title. Mutual maintenance obligations agreed between original parties do not automatically bind buyers of either property. The Halsall v Brizell [1957] benefit-burden principle can sometimes be used to enforce mutual obligations, but the position is uncertain.
What is the solution for a flying freehold?+
The most practical solution for most buyers and landlords is title indemnity insurance — a specialist single-premium policy that covers the risk of maintenance failure by the neighbouring owner and is acceptable to most mortgage lenders. A deed of mutual covenant with the neighbour (attempting to enforce obligations via the benefit-burden principle) is an alternative. Conversion to commonhold eliminates the problem but requires consent of all freeholders and is rarely done in practice.
Does the flying freehold problem apply in Scotland?+
No — Scotland has a different solution. The Title Conditions (Scotland) Act 2003 permits positive real burdens to run with the burden of land and bind successors, without the restriction that applies in England and Wales. Scottish conveyancing does not face the positive covenant problem in the same way, so flying freeholds are not a significant concern there.