Now

Problems found after you bought · Flying freehold

When I bought this property, I didn’t know A flying freehold could hold up a sale or a remortgage. Now I’m stuck.

Then

Would you have bought the property if you had known?

If you had known about the flying freehold before you committed, and understood the problems it could cause when you later came to sell or remortgage, would it have changed your decision?

Would you have paid the same price?
Would you have wanted it investigated first?
Would you have walked away?

If knowing about the problem might have changed what you did, the next question is obvious.

Did you receive the right advice when you bought?

You may not know the answer yet. But if nobody explained the problem, or you are now questioning what you were told at the time, that is worth looking at.

You don’t need to know whether anyone was at fault. Tell us what happened and when you bought. We’ll talk it through with you.

Tell us what happened and arrange a call A conversation first. Usually about twenty minutes.

Now

Why a flying freehold can hold up a sale or remortgage

What worries buyers about a flying freehold, and what a lender’s written requirements tend to focus on, is the building. It is sometimes called a creeping freehold, particularly where the part in question sits below the neighbour rather than above. Part of your home sits over, or under, someone else’s property: a bedroom above a neighbour’s passageway, perhaps, or a room reaching over their garage. It is unsettling to be told that part of your house is held up by a structure you don’t own.

What holds up the transaction is usually something else. Not the brickwork, the paperwork. The deeds need to make clear who is responsible for support and repairs, whether access is available if work is needed, and who must pay. If they do not answer those questions clearly, the buyer’s solicitor or lender may ask for more information or additional protection before the transaction can continue. That is where the buyer’s lender’s written requirements become important. They may address how much of the property is affected, what the deeds already provide and whether any additional protection is required. Each lender sets its own written requirements, and they differ, so the outcome can vary depending on those requirements and on the particular title arrangements.

How it usually comes to light

A buyer’s conveyancer reading the titles

The register, title plan and filed deeds reveal that two freeholds overlap, and show which rights and obligations were recorded for the two properties.

A survey or valuation

The physical layout, perhaps a room over a passageway or part of a neighbouring building, prompts a question about where the legal boundaries run.

A remortgage title check

Nothing at the property need have changed. A fresh examination of the title under the new lender’s written instructions brings the arrangement into focus.

A repair that needs access

Work is needed to the flying part or its supporting structure, exposing whether the deeds provide workable rights of entry, repair and support.

What you can do about it now

Ask your solicitor to check both titles, their plans and any deeds referred to in the registers. Between them they should help establish what lies over or under what, whether you have workable rights of support, protection and access, and who must do the work and pay.

Where something is missing, possible routes include further evidence, an insurance policy or a new deed agreed with the neighbouring owner. Which of those will satisfy a particular lender depends on that lender’s own written requirements. Flying freehold indemnity insurance is often suggested first, but it does not meet every lender’s requirements, so check what this lender’s requirements say before paying for a policy.

Before contacting the neighbouring owner or proposing a new deed, ask your conveyancer whether doing so could affect any insurance option. Anything needing that owner’s agreement can take time, and a new deed may need drafting, agreement and registration. So start early.

If you are selling, your conveyancer can ask the buyer’s solicitor what remains unresolved and whether it arises from the buyer’s lender’s requirements. If you are remortgaging, your conveyancer can check your proposed lender’s requirements directly.

Tell us what happened and arrange a call

Then

What happened when you bought?

A flying freehold does not normally develop after you buy. The first question is whether the same arrangement existed when you purchased the property. Your old purchase papers may then show whether it was identified, what was explained to you and whether anything was done about it before you committed to buy.

The completion title papers show the register, plan and deeds your conveyancer investigated. An older deed may define the overlapping parts and set out rights of support, protection, access and repair; it may also show obligations concerning maintenance or contribution. Replies to enquiries and correspondence may record questions raised with the seller or adjoining owner. A valuation or survey may show whether the physical arrangement was noticed, while your Report on Title may show what was explained to you. The full conveyancing file brings those strands together. The lender’s historical written instructions may also be difficult to recover, because they are revised regularly and superseded versions disappear from public view.

Was this property really mortgageable when you bought?

Getting a mortgage when you bought does not necessarily tell you how readily mortgageable the property was across the wider market. There are two historical questions worth asking.

What did your own lender’s written requirements say about flying freeholds when you bought? And what express requirements did other lenders have recorded at the same time?

Lenders’ written requirements were not necessarily uniform, and their wording changed over time. That means both which lender you used and when you bought can matter.

Lenders set out in writing what they expect a conveyancer to do about particular features of a property. Those instructions are revised regularly, and superseded versions drop out of public view, which can make a question as simple as what was my conveyancer told about flying freeholds in the year I bought? surprisingly difficult to answer from the sources available today. Lexsure has retained historical lender-specific conveyancing requirements since April 2007, so where the records permit they can help reconstruct what your lender’s requirements said at the time and how that compared with the wider lending market.

Across that period, 83 lenders in our covered archive population have had express requirements about flying freeholds on record, addressed across 5 separate places in their instructions. The earliest express appearance we can identify in the material we hold dates from 2008; the most recent recorded change of wording is 2026.

Two points of precision, because they matter. “Earliest identified” means the earliest express appearance in the material we hold, not the date any requirement began. And where our material for a particular lender and period is incomplete, that lender is left out of these figures rather than counted as having said nothing. A gap in the record is a gap, not evidence of silence.

2013

So, when did you buy?

2013

Changing the year here doesn’t send us an enquiry or tell us who you are.

Why the year matters

An example of the kind of wording in force 2007 to 2011

One lender’s requirements, not named, by way of illustration. Requirements were not uniform and this is not the wording that applied to your purchase — that depends on your lender and your completion date.

No lender handbook Part-2 (specific) requirements were published prior to . But professionals were still under a duty of care on this topic. It is still worth speaking to us even if the purchase predates .

If we find no express requirement for your lender

Where our material for your lender and period is complete, the answer may simply be that no express flying freehold wording appears in it. Where our material is incomplete, we treat that as a gap in what we hold, not as evidence that your lender said nothing.

Either way, the lender’s instructions are only one part of the record from the time.

Also

The wider picture

Historical lender requirements can help us understand how mortgageable the property was when you bought. The conveyancing file and the advice given to you also matter.

Lexsure holds historical Report on Title material: the reports conveyancers sent to homebuyers, going back years. That material shows the kinds of flying freehold issues that were being addressed when firms reported to buyers, and it is a second and separate record from what lenders required.

Which part flies, and how much

Was it established exactly which part of the property sits over or under the neighbour, and what proportion of the building that represents?

Which rights the deeds gave

Were you told which rights existed, such as support, shelter and entry for repair, and which were missing, particularly repair obligations?

What was put in place

Was flying freehold indemnity insurance arranged, or a deed of covenant, and was your own lender’s requirement on that established?

Selling and remortgaging later

Were you told the issue tends to surface on a later sale or remortgage, and that a buyer’s lender may take a different view from yours?

These are examples of issues addressed in historical conveyancing material, not a checklist of what every purchaser should have been told. What mattered in an individual purchase depended on the circumstances and on what was known at the time.

So even if your mortgage completed, or there is nothing unusual in your lender’s historical requirements, it can still be worth talking to us about what happened.

Could this problem have been seen coming?

The relevant starting point is what was known, or could reasonably have been identified, when you bought.

What did the title show? What was in the replies to enquiries? What was in the conveyancing file? What were mortgage lenders requiring at the time? What kinds of flying freehold issues were conveyancing firms addressing with homebuyers? And what were you actually told?

Taken together, that can help build a picture of whether the problem you are facing today was already something that should have been considered when you bought.

Did you receive the right advice?

Tell us what happened and arrange a call No report to buy. No claim to start.

Limits

What the historical evidence can tell us

Where the relevant lender and period are covered, we may be able to establish what that lender’s conveyancing requirements said when you bought, and how that compared with the wider record at the time.

That does not by itself establish that anyone was negligent, or that you have a claim. Those questions need the original file and legal advice.
A lender with no express wording on the issue has not thereby accepted it. Silence in the record has to be read carefully, not treated as approval.
What your conveyancer had to tell your lender and what they had to tell you are different questions, and the second depends on the retainer and the circumstances.

Time limits apply, and in some cases the date on which you first knew enough about the problem matters as well as the date you bought, which is why we ask about both. Our full methodology, including how we treat gaps in the record, is set out in the archive and its limits. Where a solicitor later needs formal historical evidence, Lexsure can provide source-evidenced historical lender information.