Flying Freehold & Creeping Freehold in Conveyancing
Conveyancing is not always a straight-forward endeavour and complications may arise when you have a less than standard shaped property. If you are planning on purchasing or selling a property with a Creeping / Flying freehold, your Conveyancing Solicitor may have to do a bit more work on your transaction.
A flying freehold exists where a part of one property extends physically in or over a neighbouring property. In both of these instances the two buildings then depend upon each other for support. The flying part of the freehold does not need to be in mid-air, and can be over a part of adjoining properties freehold land, or over a common part. The common part does not need to be enclosed and can be an external passage. Therefore one person's property becomes dependant on his neighbour for the upkeep and often the structural integrity of his own house.
The most commonly seen example by is where there is a covered passage between two terraced houses. If the passage is owned by the property on the left, but the upper floor of the property on the right extends over all or part of the passage-this is a flying freehold. The problem being that part of the property on the right is supported by land which it does not own. If the extent of the property which overhangs is small then it usually is not such an issue, but sometimes whole rooms can overhang another property.
A creeping freehold is different to a flying freehold. The term creeping freehold relates to a situation where the property is dependent upon the neighbouring property for support but the flying element of the property is within the boundaries of the property. By way of en example, a property has a passageway on its left hand boundary which the neighbouring properties have a right to use. Above that passageway on the first floor are part of that properties bedrooms, which are connected to the neighbouring property. The neighbour's property is effectively holding up and supporting the bedrooms. Most conveyancing solicitors would say that this is not a flying freehold as the first floor bedrooms are within the boundaries of the property. However it is a creeping freehold as it is still dependent upon the neighbouring property for support.
Rights of Support
The questions conveyancing solicitors must ask are:- 'What happens if the adjoining property is not looked after and falls into disrepair? Are there adequate rights of support and provisions for insurance? Is there a right to enter the property in order to maintain and repair the part subject to the creeping / flying freehold? Indemnity Insurance is widely available for titles which are affected by creeping / flying freeholds.
This is to insure any prospective purchasers for inadequate provisions in the title deeds to the property in respect of the following:-
- necessary rights of support, protection and entry for repair
- scheme of covenants to enforce subsequent purchasers of the property and the adjoining dwelling to the property to enter into support, repair and maintenance covenants.
- regulate the insured liability with regard to the maintenance and repair of any structures supporting the said creeping and or flying freehold.
Many conveyancing solicitors believe that if there are adequate rights of support and protection from the neighbour's property there is no cause for concern. However, in our example above, what would happened if the property that was holding up the property with the flying freehold was to be destroyed, the owner of the property had no mortgage or insurance, could not afford to repair the property and therefore abandoned it? There would be nobody to enforce the right of support and shelter against.
Mortgage Lenders and Flying / Creeping Freehold
If you are having a mortgage, please be aware that your Solicitor will need to notify your mortgage lender that the property is a creeping / flying freehold. This may affect their decision on whether they wish to lend on the property.
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