What is a flying / creeping freehold?
Where part of the upper floor(s) of a building overhangs an adjoining building, or land, and that part is included in the title it is known as a flying freehold (if part of a building goes under an adjoining building that is known as a creeping freehold - the principles are the same either way). Where there is a flying freehold, there will be an entry in the register which reads "as to the part tinted blue on the filed plan, only the [cellar][ground floor][first floor][second floor][rooms over the passageway etc] are included in the title." Part of the land within the red edging on the title plan will be coloured blue. as to that part, only the parts of the building described in the entry are included in the property title - not the rooms above or below or the airspace or subsoil. Flying freeholds are most common where there is a passage between two buildings, the upper floors of the buildings are joined at first floor level, the legal boundary runs down the centre of the passage but one of the buildings overhangs the centre. Creeping freeholds typically occur when the basement/cellar of a building extends under its neighbour, but either can also be a result of interlocked buildings.
You should be wary of confusing flying freeholds with the more serious issue where part of a building is not within the property title. Physically, the building will look like it includes a flying freehold element but if there is no entry on the title referencing blue tinting (and no blue tinting on the plan) then it is simply that part of the property is in fact in the adjoining title, so that a purchaser of the property will not own the whole of it.
What are the issues?
Where there is a horizontal boundary between two properties (i.e. one sits on top of the other), they will need a right of support (for the upper building) and a right of shelter (lower building). A right of support is a right to have your building supported, i.e. if the neighbour wanted to demolish their property they would have to take steps to protect yours from collapse and a right of shelter is the reverse. Rights of access to the adjoining building will be required in case it is necessary to carry out repairs (remember that a flying freehold that overhangs doesn't include the airspace above, so when repairing the the roof you would be in the neighbour's airspace). Finally, mutually enforceable repairing and insuring covenants are needed, since damage to or deterioration of the adjoining building may affect your own. If the rights and enforceable covenants (see below) exist then the title is ok however it is not uncommon to find that they do not. If the buildings have stood for 20 years or more then rights of support and shelter will be implied by prescription. Rights of access for repair could be, but it's unlikely since they won't have been exercised regularly. Covenants cannot be created by prescription.
Even if all the rights and covenants appear to be in place, there may still be a problem. Positive covenants, i.e. obligations to do something such as repair or insure, do not "run with the land". That means that they they are only enforceable against the party that originally entered into the covenant. This will ordinarily be the purchaser under the conveyance/transfer that created the separate titles for the properties. Once one of the properties has changed hands, the covenants therefore cease to be enforceable by the the owners of the properties for the time being.
What are the possible remedies?
If there are no rights or covenants, a deed can be entered into between the neighbours to create the same. There are a couple of caveats here. The first is that the neighbour, that is to say the owner of the property not being sold at the moment, has less incentive. There is some, because putting covenants and a right of shelter/support in place will benefit them, but unless they are actually experiencing problems there is no imperative to take action. They may just sign and return whatever deed is presented to them, but most people would want to seek legal advice (the conveyancer acting in the sale cannot provide that advice as it would be a conflict of interest). The seller, or buyer, would likely need to pay for that and convincing the neighbour to arrange it may prove difficult. The other point is that if the neighbour's property is mortgaged then either the consent of the lender will be required or else it will need to be accepted that the deed will not bind the lender (so that the rights and covenants are lost if the lender repossesses the property).
Subscribers can select the Deed Drafting Tool from the Virtual Conveyancer menu on the left.
If the rights and covenants are present, there is still the problem of being able to enforce the covenants against subsequent owners. That can be overcome by adding a restriction to the title of each property so that every time each property is transferred the new owner has to enter into a deed of covenant with the adjoining owner (to insure and repair etc). In this way the adjoining property owners are always the original covenanting parties.
An alternative to having the property owners enter into deeds would be indemnity insurance. It is possible to purchase a flying freehold indemnity policy, usually for a fairly modest premium, which will provide cover for costs incurred in securing rights/losses suffered as a result of an inability to exercise rights or enforce covenants. It is generally accepted that the seller should pay for such a policy, since the title defect is not something the buyer would have been aware of, when submitting a offer for the property.
What advice can I offer the client?
When advising a client, you of course need to be able to do so concisely and in plain English. It is ultimately up to you how you do that, but something like this is suggested (to be adjusted to fit the specific circumstances):
"You may have noticed that part of the upper floor of the property overhangs the passageway way between this property and number XX. The passageway belongs to number XX. This arrangement is termed a “flying freehold”. When people think of “land” they generally think of what is on the ground but in fact if you own land you also own the airspace above (as well as everything below ground). Part of the upper floor of this property is therefore on the neighbour’s land.
In these circumstances we would hope to see that this property had the benefit of a right of support from the adjoining property and a right of entry for repair as well as a scheme of enforceable covenants which obliges the neighbour to do the following:
- keep the structure of his property sound;
- insure it; and
- ensure that when he sells he arranges for the purchaser to enter into these covenants with you
[IF THE RIGHTS ARE PRESENT BUT THE COVENANTS ARE NOT Although the deeds contain a right of support for your property and a right of access, the covenants are not present ELSE IF NEITHER THE RIGHTS OR COVENANTS ARE PRESENT In this case there are no rights or covenants present. ELSE IF RIGHTS AND COVENANTS ARE PRESENT BUT THERE IS NO RESTRICTION ON THE PROPERTY TITLES MAKING THE COVENANTS ENFORCEABLE Although the rights and covenants are present there is no mechanism that will allow the covenants to be enforced]. This is not uncommon and there are two options available:
- varying the title to include the necessary rights and/or covenants; or
- indemnity insurance
Varying the Title
This would involve asking the neighbouring property owner to enter into a deed to create the missing rights / covenants and to agree to adding a restriction to their property title so that each subsequent owner has to enter into direct covenants with you. A similar restriction would need to be placed on your title. This approach would remedy the defect once and for all however it is something the neighbour may not agree to and even if they do the seller may not wish to go down that route, or else the seller may expect you to cover all of the associated legal costs. The process may be protracted as, although you and the seller would be keen to progress quickly, there is no such incentive for the neighbour.
Indemnity Insurance
An alternative would be to obtain an indemnity insurance policy. Such a policy would cover any losses you might suffer as a result of these provisions not being present, for example if you are unable to enter the neighbouring property to repair the “flying freehold” element of your own or if the neighbouring property collapses through neglect thus damaging yours. This is the usual remedy in these circumstances and we would request that the seller pays for the policy. When you come to sell, you would need to pay for a policy for your buyer. We cannot guarantee that a future buyer would accept indemnity as a solution of course, though we would expect them to.
Please let us know how you would like to proceed."
You will of course need to delete the inapplicable text from within the square brackets.
