Statutory Diligence GuideUpdated October 2026Follow on Google★

Why Do UK Mortgage Lenders Dislike Flying Freeholds?

Statutory Source: House of Lords: Rhone v Stephens [1994] & Austerberry v Oldham Corporation [1885]

Quick Answer: Why Do UK Mortgage Lenders Dislike Flying Freeholds?

Mortgage lenders dislike flying freeholds because under English common law (the fundamental rule in Rhone v Stephens [1994] and Austerberry v Oldham Corporation [1885]), POSITIVE COVENANTS DO NOT RUN WITH FREEHOLD LAND. If your neighbour's supporting walls, ground floor, or roof collapse or rot, you have no legal power to compel them to spend money on repairs. If the supporting building collapses, the bank's mortgage security literally disappears, leaving the lender with an unrecoverable loan.

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The Common Law Problem: Rhone v Stephens [1994] 2 AC 310

To understand why high street banks are cautious about flying freeholds, you must understand the distinction between freehold and leasehold law.

In a block of leasehold flats, the landlord or management company has an enforceable statutory and contractual duty to maintain the entire structural fabric, financed by service charges.

However, in freehold properties, the landmark House of Lords ruling in Rhone v Stephens [1994] affirmed that while negative restrictive covenants ('do not build an extension') bind successive owners, positive covenants ('you must maintain the roof and walls') do NOT run with the land.

Therefore, even if the original Victorian builders signed a covenant promising to support the upper rooms, that promise died with them. The current neighbour can simply refuse to maintain their supporting structure.

Legal Enforceability: Freehold vs Leasehold Structural Covenants
Structural Covenant TypeFreehold Land RuleLeasehold Land RuleLender Risk Level
Right of Shelter & SupportCannot compel active repairs (Rhone v Stephens)Fully enforceable against Landlord / FreeholderHigh in Freehold; Low in Leasehold
Entry for MaintenanceRequires express grant or Court orderAutomatic statutory access right in leaseModerate in Freehold
Shared Building InsuranceIndependent policies; risk of gapsBlock policy arranged by freeholderHigh in Freehold; Low in Leasehold
Enforcement of DefaultCostly High Court action; uncertain outcomeForfeiture or S.146 Law of Property Act noticeCritical in Freehold

Access to Neighbouring Land Act 1992

If your neighbour refuses you permission to enter their garden or driveway to erect scaffolding and repair your overhanging wall, you cannot simply trespass.

You must apply to the County Court for an Access Order under the Access to Neighbouring Land Act 1992. While the Court will grant access for basic preservation works, court proceedings cost £3,000–£8,000 and take 6 to 9 months.

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Official Statutory Notice & Guidance:

This guide is compiled for informational due diligence referencing official statutory records from House of Lords: Rhone v Stephens [1994] & Austerberry v Oldham Corporation [1885] under the Open Government Licence v3.0. Legal titles and physical structural condition should always be independently inspected by a qualified conveyancing solicitor and chartered RICS surveyor prior to legally binding property commitments.