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.
| Structural Covenant Type | Freehold Land Rule | Leasehold Land Rule | Lender Risk Level |
|---|---|---|---|
| Right of Shelter & Support | Cannot compel active repairs (Rhone v Stephens) | Fully enforceable against Landlord / Freeholder | High in Freehold; Low in Leasehold |
| Entry for Maintenance | Requires express grant or Court order | Automatic statutory access right in lease | Moderate in Freehold |
| Shared Building Insurance | Independent policies; risk of gaps | Block policy arranged by freeholder | High in Freehold; Low in Leasehold |
| Enforcement of Default | Costly High Court action; uncertain outcome | Forfeiture or S.146 Law of Property Act notice | Critical 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.