Problems found after you bought · Freehold flat
When I bought this property, I didn’t know A freehold flat could hold up a sale or a remortgage. Now I’m stuck.
Would you have bought the property if you had known?
If you had known the flat was freehold and what that could mean 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.
Why a freehold flat can hold up a sale or remortgage
Most flats in England and Wales are leasehold. A lease normally provides a framework for repair, insurance, access, support and the recovery of shared expenditure. A conventional freehold flat has no lease-based framework, although some rights and obligations may appear in transfers or other deeds. Commonhold is different: it is a statutory form of freehold flat ownership with its own management arrangements.
The central difficulty is whether rights of support, protection and access, and obligations concerning repair, insurance and contributions, are adequate and enforceable against whoever owns each property in the future. The burden of a positive covenant, such as an obligation to repair a roof or contribute towards expenditure, does not normally pass automatically to successive owners of freehold land. Particular title structures and contractual arrangements can sometimes address this, so the actual documents must be examined.
Some lenders’ requirements do not permit lending on a conventional freehold flat, and others are met only by particular title structures or circumstances. The available mortgage market can therefore be substantially narrower, depending on the property’s legal arrangements and the lender involved.
How the problem usually surfaces
The buyer’s lender raises the tenure
The number of lenders whose requirements the property can meet may be limited, which can reduce the pool of potential buyers and delay a sale or remortgage.
Nobody has to pay for the roof
The roof or the foundations need work, and there is no enforceable obligation on the other owner to contribute to a part they do not own.
Insurance flat by flat
Each flat is insured separately rather than the building under one policy, so a gap in the other owner’s cover becomes your problem.
A crossover lease nobody explained
You discover you hold a lease of your own flat and the freehold of the other, which makes you the other owner’s landlord and them yours.
A remortgage title check
Nothing at the flat has changed. The title is examined again, against a different lender’s written requirements.
What you can do about it now
Establish the structure first. Ask your conveyancer to confirm from the register whether there is any lease at all, who owns what, and what obligations for repair, insurance and contribution exist and against whom they can be enforced. A conventional freehold flat with no supporting lease structure is commonly the most difficult case, but crossover leases and mixed arrangements must also be checked carefully.
Where the existing structure is unacceptable, a possible solution may be to restructure the titles or create an appropriate lease arrangement. In a two flat building this can require reciprocal documentation, the cooperation of the other owner and, where properties are mortgaged, lender consent.
Where a lender’s requirements allow for it, a contingent buildings insurance indemnity policy may sometimes address specified insurance risks. It does not create missing rights of access, support or enforcement, and it does not impose repair or contribution obligations on another owner.
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.
What happened when you bought?
The tenure and the legal structure of the building should have been identifiable from the title documents when you bought. If it was a conventional freehold flat, the register would normally show the freehold ownership and whether any supporting lease existed. In a crossover or mixed arrangement, the structure may instead have appeared across the register, leases, transfers and other deeds. The questions are what your conveyancer identified, what you were told about it, whether the effect on a future sale or mortgage was explained, whether any corrective structure was considered, and whether the issue was reflected in the price you paid.
Several records from the time may matter, and some may survive. The register and title plan show what was owned and how the building was divided. Any lease, deed of covenant or transfer may show what obligations were imposed and on whom. The replies your conveyancer received may show what was asked about repair and insurance. A valuation may show how the tenure was treated. Your report on title may show what you were told. 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 freehold flats 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 freehold flats 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, 66 lenders in our covered archive population have had express requirements about freehold flats on record, addressed across 7 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. We do not treat an incomplete record as showing that the lender had no requirement.
So, when did you buy?
Changing the year here doesn’t send us an enquiry or tell us who you are.
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 wording about freehold flats 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.
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 freehold flat issues that were being addressed when firms reported to buyers, and it is a second and separate record from what lenders required.
Whether the tenure was explained
Were you told the flat was freehold rather than leasehold, and what structure the building was held under, including any crossover lease?
Repair and contribution
Were you told who was responsible for the roof, the foundations and the structure, and whether anyone could be made to contribute?
Whether insurance was addressed
Were you told how the building was insured, and whether a contingent buildings insurance indemnity policy was needed to protect you and your lender?
Whether the effect on selling was explained
Were you told the tenure could affect a future sale, the range of buyers, and whether a lender’s requirements could be met?
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 register show about the tenure? What obligations existed, and against whom? What was in the conveyancing file? What were mortgage lenders requiring at the time? What kinds of freehold flat 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?
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.
- The absence of express wording does not establish that the lender accepted the issue.
- 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.
Sources and review
This page is about a flat or maisonette held freehold rather than leasehold. If the concern instead relates principally to part of one freehold extending over or beneath another property, see our separate guide to flying freeholds. Guidance here about the present problem is general information. It is not legal advice about your property.
Commonhold is described in HM Government guidance on commonhold property. This page states no universal lender rule, because requirements on tenure differ between lenders and change; the UK Finance Lenders’ Handbook contains both general and lender-specific instructions and participation is not universal. The position must be reverified at each review.
Historical lender information is drawn from Lexsure’s archive of lender-specific conveyancing requirements, maintained since April 2007. Figures on this page state the population they are drawn from.