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A flying freehold exists when one part of a property extends over, or under, a neighbouring property. The term should bring a chill to anybody involved in the purchase or sale of a house. Such a physical arrangement throws neighbours close together, in a way which British law can barely cope with.
With a flying freehold, one person becomes dependant on his neighbour for the upkeep - often even the structural integrity - of his own house. Unfortunately in our area, West Yorkshire, when many rows of houses were built, it was never thought that they would be sold off individually. They have roofs and cellars, bedrooms, stairways and whatever, happily reaching into, over and under next door.
The question to ask yourself, when looking at such a house is 'What happens, if the house next door is completely obliterated? Which bits of my house will fall down? If next door is not repaired, can I protect my own property?'
You must be sure of the answers to these questions. British law will not serve you well. Such situations involve the acceptance, by your neighbour, of an obligation to spend his money, if necessary on your behalf, to repair his property. A recent case has confirmed, again, that that burden cannot readily be moved from the shoulders of the person who originally accepted it. After he sells the house, the new owner is not responsible directly to you, and you cannot say to him, directly, that he must repair his property. You must find, and sue, the original owner. He may be long gone. If found, he must himself find and sue his own purchaser, who may also have sold on, and he must do the same. If any link in the chain of owners is missing, the whole thing fails. Once the covenant is more than a few years old, it becomes a waste of ink.
This does not mean that neighbours do not usually repair their properties, or that people do not live perfectly happily, well as happily as anyone, in such properties. It only means that, when they do come to sell, or to enforce a repair, disappointment, difficulty, and possibly even despair, may not be far away.
This is not just a problem for flying freeholds. It can affect any two properties, for example where one owner has to maintain a fence. It is just that the problem becomes much more acute with flying freeholds. The problem is also less serious, where the property is leasehold, because the Landlord is always able to enforce a covenant against the current tenant. This indeed is why so many of such properties are leasehold. All you have to do is to persuade the Landlord to chase your neighbour. That may not be easy, but it is at least possible.
As always in conveyancing, the wisdom of a purchase best measured only on the sale. If you can avoid a flying freehold do so.
It must also be pointed out that as conveyancing standards are standardised and raised, the difficulties in borrowing money on such property, and therefore for any seller, will only increase.
An important development is the Contracts (Rights of Third Parties) Act 1999. This Act is intended to allow named third parties to take a benefit under contracts to which they are not themselves a party. There is a potential to use this contract in the management of flying freeholds in the future, but at the moment it remains quite unclear that it will be of help to those with agreements drawn before the Act.
A further prospect of hope lies in the proposal to institute a system called 'commonholds' Whether and when this might be created, and what form it might take remains unclear. It is intended to assist owners of flats unable to keep up to th burden of managing leaseholds.
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