Flying Freeholds: The Curious Case of Property Floating in Air

When we think about property ownership, we typically imagine land a solid piece of earth you can stand on, fence off, and call your own. However, English property law has a peculiar concept that turns this assumption on its head: the flying freehold.

What Is a Flying Freehold?

A flying freehold occurs when someone owns the freehold to part of a building that sits above or below someone else’s property, with no supporting land of their own. The most common example is a room that extends over a neighbor’s garage or driveway, or an upper floor of a building where the ground floor is owned separately.

Picture a medieval town house where the upper story juts out over the street, or a modern flat where your bedroom literally sits above your neighbor’s living room, but you each own your respective parts outright as freeholds rather than leaseholds. Your property is quite literally flying above theirs.

Why Do They Exist?

Flying freeholds are largely historical accidents. Many emerged from ancient property divisions in old market towns and cities, particularly in England, where buildings were modified, extended, or divided over centuries without the benefit of modern property law. When a single building was split between different owners, the divisions didn’t always follow logical horizontal lines.

They are also sometimes created when property developers or owners split buildings in ways that seem convenient at the time but create long-term complications. A house might be converted into two separate dwellings, with one owner taking the ground floor and another the upper floor, each holding the freehold to their portion.

The Problems with Flying Freeholds

While the concept might sound charming or quirky, flying freeholds create significant practical and legal headaches. The person who owns the upper portion depends entirely on the structural integrity of the lower portion, yet has no legal right to insist on its maintenance. If the ground floor owner lets their property deteriorate, the upper floor owner’s property could become dangerous or worthless yet they have no automatic legal recourse.

Similarly, issues arise with repairs, insurance, and alterations. Who pays if the shared wall needs repairing? What happens if water damage from the upper property affects the lower one? Can the ground floor owner make structural changes that might affect the flying portion above?

These questions often have no clear answers, and without explicit legal agreements in place, disputes can become expensive and bitter.

Mortgage and Sale Complications

Flying freeholds are notorious for causing problems when buying or selling property. Many mortgage lenders are reluctant to lend on properties with flying freeholds due to the inherent risks and lack of control over essential structural elements. This can make these properties difficult to sell or refinance.

Solicitors will flag flying freeholds during conveyancing, and buyers are often advised to ensure proper indemnity insurance is in place or that there are clear legal agreements between the properties regarding maintenance and repairs.

Solutions and Alternatives

The modern solution to the flying freehold problem is the common hold or, more typically, the leasehold arrangement. In a leasehold, a freeholder owns the entire building and grants long leases to occupiers of different parts. This ensures one party has overall control and responsibility for the structure, with clear obligations for maintenance built into the lease agreements.

Where flying freeholds already exist, property owners are often advised to draw up formal agreements that specify responsibilities for repairs, insurance, and maintenance. These “Deeds of Easement” or mutual covenants can provide some protection, though they are not always as comprehensive as a proper leasehold structure.

A Fascinating Quirk

Flying freeholds remain one of the more fascinating quirks of property law, a reminder that ownership isn’t always as straightforward as it seems. They are living relics of how property has evolved over centuries, and while they create genuine practical problems for owners, they also add character and historical interest to our understanding of how we have divided and managed property through the ages.

If you are considering buying a property with a flying freehold, proceed with caution, seek excellent legal advice, and ensure you understand exactly what you are taking on. You will be part of a peculiar tradition that stretches back hundreds of years, owning a piece of property that quite literally defies the usual rules of land ownership.