Flying freeholds exist where two freeholds overlap with one another. Problems can occur when common passageways exist, particularly in ex-council owned properties. Passageways providing access to a rear garden or parking area were often built underneath houses, with a separate passageway above. They were built in this manner to cut costs, and while they don’t usually pose a problem when the property is rented, it can become difficult when the property is sold under the ‘Right to Buy’ scheme.
Potential problems that can occur
- Passages only work if used for the purpose intended and whilst there is cooperation regarding maintenance, repair and access.
- Putting a padlock on the access to the passage may be useless to other owners and may prevent sales.
- Lack of use may mean the access is lost due to being abandoned by a user over a long time period and may become difficult to reinstate when it comes to the sale.
- Changes in lifestyles, for example when a shared driveway is in use, can prevent a house being extended.
- People may not be using the shared parking areas as intended, for example they may be parking unused or abandoned vehicles there.
- Drastic action in the courts may be necessary to regulate but could be expensive.
The above is not a comprehensive list, as anything shared by unrelated people can cause problems in the future as disputes have to be notified when a property is sold.
Solutions for purchasers
There are ways for purchasers to get around this issue of flying freeholds:
1. Purchasers can enter into a Deed of Mutual Consent with others who use the property, but this is cumbersome as both parties have to be available to sign when each property is sold. This method also relies on co-operation between the property owners, which isn’t always forthcoming.
2. Flying freehold indemnity insurance covers lenders for any loss in value incurred as a result of a lack of maintenance or repair of the adjoining property. It is a cheap fix to cover future sales with only top-up cover needed during the policy term.
3. The Access to Neighbouring Land Act 1992 can allow access to the other property for the purposes of a quick maintenance or repair but it is imperative that the other property is not improved or disturbed.
For help with your property matters, contact Aston Bond today by popping into our offices at Windsor Crown House, Slough, SL1 2DX or giving us a call on 01753 486 777.
Nick Powe, Senior Property Solicitor