The Legal Dilemma: Positive Covenants in English Freehold Law
A flying freehold is an architectural arrangement where part of one freehold property overhangs or underlies another adjoining freehold.
Common UK examples include a bedroom built above a shared archway or carriage pend, rooms situated over a neighbour's garage, or cellars extending beneath an adjoining shop.
The fundamental legal complication arises from the historic rule in *Austerberry v Corporation of Oldham [1885]* and *Rhone v Stephens [1994]*:
• Positive Covenants Do Not Run with Land: In English law, positive obligations (such as an agreement to spend money maintaining a roof or supporting wall) cannot be enforced against future successors in title.
• Structural Stalemate: If your neighbour's ground floor begins to collapse, you cannot legally force them to repair the foundations supporting your bedroom unless an express cross-easement or lease structure exists.
| Mortgage Lender | Maximum Flying Freehold % Allowed | Title Requirements | Indemnity Policy Accepted? |
|---|---|---|---|
| Halifax / Bank of Scotland | Up to 25% of gross floor area | Must have rights of support & entry or indemnity | Yes (Standard UK Finance policy) |
| Santander UK | Up to 15% (Subject to valuer sign-off) | Requires valuer to confirm marketability | Yes (Must cover full purchase price) |
| Nationwide Building Society | Case-by-case; generally under 20% | Surveyor must confirm structural stability | Yes (Subject to conveyancer certification) |
| Barclays | Acceptable if minor and rights exist | Express right of support, shelter & access | Yes (If defects cured by policy) |
| NatWest / RBS | Case-by-case; requires specialist review | Reciprocal covenants of repair preferred | Yes (Standard Council of Mortgage Lenders terms) |
| HSBC UK | Case-by-case; valuer discretion | Property must remain fully saleable | Yes |
UK Finance Lenders' Handbook Section 5.14 Standards
Under Section 5.14.1 of the UK Finance Lenders' Handbook, your conveyancer must certify to the lender that the property has:
• Adequate rights of support and shelter from adjoining structures.
• Express legal rights of entry to inspect and carry out necessary structural repairs.
• Enforceable covenants requiring the neighbour to maintain their supporting parts.
If any of these criteria are absent, the conveyancer is statutorily prohibited from releasing loan funds unless a specialist Flying Freehold Title Indemnity Insurance policy is put in place.
A standard one-off flying freehold indemnity policy costs between £180 and £350. It is paid once on completion (typically by the seller) and remains valid for the lifetime of the property, protecting both the buyer and all future mortgage lenders.
How to Protect Your Purchase When Buying a Flying Freehold
Follow these practical steps to ensure your purchase clears mortgage underwriting:
1. Instruct a Chartered Structural Surveyor: Ensure your RICS survey explicitly inspects the supporting walls, joists, and beams beneath the overhanging section.
2. Calculate the Overhang Floor Area: Have the surveyor verify whether the flying portion represents under 15% or under 25% of total gross internal area.
3. Request a Deed of Mutual Covenants: Where possible, ask conveyancers to execute formal reciprocal deeds of easement between the two adjoining owners.
4. Secure Title Indemnity Prior to Exchange: Never exchange contracts without written approval of the indemnity draft from your mortgage lender.