What a Flying Freehold Means in Practice
The practical significance of a flying freehold depends on how large the affected area is and how significant the shared obligations are. A small overhang of a few square metres — say a bay window that projects marginally over a neighbour's driveway — presents far less risk than a situation where 30% of the property overhangs another owner's land and there is no clear agreement about who is responsible for maintaining the shared structure.
Solicitors acting on remortgage applications are required to report flying freeholds to the lender and to advise on the risks. The conveyancing process will involve a review of the title to establish the extent and nature of the flying freehold, what obligations exist between the affected parties, and whether those obligations are adequately documented and enforceable. Where the flying freehold involves shared structural elements — a party wall, a shared roof, or a load-bearing structure — the maintenance obligations and liability arrangements need to be clearly set out.
The legal mechanism used to address flying freehold obligations is typically either a covenant in the title deeds or a formal deed of easement or mutual maintenance agreement between the neighbouring owners. Where such documentation exists and is properly drafted, the flying freehold may present relatively little practical risk. Where no such documentation exists, or where it is unclear or inadequate, the risk to the lender increases because it is harder to demonstrate that future owners will be bound by the necessary obligations.
In Scotland, flying freeholds (or 'overhanging' properties) are handled differently under Scots property law, with 'real burdens' providing a mechanism for enforcing obligations between neighbouring owners that has no direct equivalent in English law. The concept of a flying freehold as a distinctive problem is largely an English and Welsh legal issue, and Scottish solicitors handle these situations within their own legal framework.
Which Lenders Accept Flying Freehold Properties
Some major lenders will consider flying freehold properties where the flying freehold element is small — typically defined as a percentage of the total floor area, often up to 15% or 20% — and where adequate rights and obligations are documented in the title or supported by indemnity insurance. These lenders take the view that a small flying freehold with appropriate documentation presents a manageable risk that does not materially affect the security quality.
Other lenders have a blanket policy of declining flying freeholds regardless of their size or documentation. These lenders may do so because they prefer to avoid any complexity in their security, or because their automated underwriting systems cannot accommodate non-standard title situations. Applying to one of these lenders without knowing their policy in advance is a waste of time and results in an unnecessary hard search on the credit file.
The proportion of the property affected by the flying freehold is the key variable. Lenders who will consider flying freeholds typically apply a maximum percentage threshold. A property where the flying freehold element represents 5% of the floor area in a room above a shared archway is very different from one where 40% of the property overhangs a neighbour's land with no clear maintenance agreement. Most lenders who will accept flying freeholds at all require the affected portion to be below a specific threshold, and the documentation of rights and obligations to be satisfactory.
Private banks and specialist lenders tend to have more flexibility on flying freeholds than mainstream high street lenders. They assess each case on its individual merits, can accept indemnity insurance as a risk mitigation, and have underwriters who are capable of evaluating the specific circumstances rather than applying a rigid automated policy. Where a mainstream lender declines on the basis of flying freehold, a specialist lender approached through a broker may be willing to proceed.
