Flying freeholds
Flying freeholds

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Flying freeholds
  • Inspection
  • Issues
  • Solutions
  • Benefits?

A freehold includes all the land below it and all the airspace above it, so two freeholds should not overlap. However, practitioners should be alive to the existence of a flying freehold which is a freehold property (or part of it) which overhangs or projects under another (the latter sometimes known as a creeping freehold). Today, a long lease would be granted in such a scenario, but flying freeholds, created historically, still crop up regularly. Examples include:

  1. balconies

  2. archways

  3. part of a property above a passageway in a row of houses

  4. basement vaults

Inspection

A flying freehold may not be obvious from the title deeds. This is only one of the reasons why, ideally, property lawyers should always carry out a site inspection, particularly with more complex properties. A surveyor may not be aware of the potential difficulties involved and so may not alert the lawyer to any element of overhang/projection.

In Bashir, both parties to an auction contract were unaware that the property included an additional ground floor flat. The sellers were executors of a will and neither party had inspected the property.

The High Court held that the objective observer would have realised that something had gone wrong with the language of the contract and would not have expected the contract to give a gift of vacant possession of an