Flying Freehold Explained: Survey, Mortgage and Indemnity Issues for East Midlands Buyers

Most flying freeholds are small. A back bedroom that oversails a shared entry, a cellar that creeps a metre under next door, a landing built over a neighbour's garage. The overhanging part is often no bigger than a parking space — and yet a flying freehold survey question is one of the most common reasons a purchase in Nottingham, Leicester or Coventry stalls somewhere between offer and exchange.

It rarely stalls because the building is unsafe. It stalls because nobody can say, in writing, who is obliged to keep the supporting structure in repair. That is a legal problem with a physical consequence, which is exactly why it lands on a surveyor's desk as well as a solicitor's.

Flying freehold in one paragraph

A flying freehold is part of a freehold property that sits above or below land owned by somebody else. It matters because positive obligations — such as keeping the structure that holds your room up in good repair — do not automatically pass to future freehold owners. Lenders, conveyancers and surveyors therefore treat it as a title risk and a structural risk at the same time.

What counts as a flying freehold — and what a creeping freehold is

The classic example is a room built over a shared passageway between two terraced houses. In the East Midlands that passage is often called a ginnel or an entry, and the room above it belongs to one house while the ground beneath belongs to the other, or to both.

You will also see it where:

• a first-floor bedroom or bathroom projects over a neighbour's garage, outhouse or driveway;

• a balcony, bay or dormer oversails the boundary;

• a former coaching inn, mill or town house has been split into freehold units rather than leasehold flats;

• a shop or pub conversion has left living accommodation sitting over a commercial unit in different ownership.

A creeping freehold is the mirror image: part of your property extends under someone else's land, most often a cellar or coal store running beneath the pavement or beneath the neighbouring house. The legal issues are the same. The inspection issues are usually worse, because cellars are darker, damper and harder to reach.

Why period East Midlands stock produces so many of them

Nothing about a flying freehold is regional in law. It is simply that the housing that generates them is everywhere in this part of the country: Victorian and Edwardian terraces with shared rear entries, subdivided Georgian town houses, back-of-shop accommodation on high streets, and older properties that were carved up long before anyone thought carefully about vertical boundaries.

Where we survey across Nottingham, Derby, Leicester, Coventry and Mansfield, the flying freeholds we meet are overwhelmingly accidental. They are the by-product of a conversion done in 1890, or 1968, by someone who was not thinking about how a mortgage underwriter in 2026 would read the title plan.

The legal root: positive covenants do not run with freehold land

English law draws a hard line between two kinds of promise attached to land.

A restrictive covenant — a promise not to do something, such as not building above a certain height — can bind whoever owns the land next. A positive covenant — a promise to do something, such as keeping a wall or a supporting beam in repair — generally does not. It binds the person who made it, and stops there.

That is the whole problem in a sentence. A repairing obligation agreed between two neighbours in 1975 may be worth very little against the person who bought one of those houses in 2019. Conveyancers work around it with a chain of indemnity covenants, or by asking each new owner to sign a fresh deed of covenant, but chains break and deeds get forgotten.

Where a flying freehold shows up on paper

Before anyone inspects anything, the extent of ownership needs establishing from the register. You can get a free property summary from HM Land Registry, with the full title register or title plan costing £7 each. The register is where restrictive covenants and easements are recorded, or where it says which older documents contain them.

Your conveyancer will be looking for three specific things:

• Rights of support and shelter — is your overhanging room entitled to be held up by the structure below it?

• Rights of entry to repair — can you get onto the neighbour's land, or into their building, to fix your own?

• Enforceable maintenance obligations — is there a mechanism that actually compels the owner below to keep their part sound?

If all three are present and properly drafted, a flying freehold becomes a mildly interesting footnote. If one is missing, it becomes a negotiation.

What the surveyor is actually looking for

This is where a report level starts to matter. Under the RICS Home Survey Standard, a level three inspection addresses the materials used in each part of the building, defects and remedial options, and future maintenance. Concealed areas that occupiers normally open are inspected where it is safe to do so, and the surveyor enters the roof space to look at the roof structure itself rather than glancing in from a ladder.

On a flying freehold, that extra depth earns its keep. The questions worth answering are physical ones:

• How is the oversailing section carried — on a beam, a masonry arch, a later steel, or something improvised?

• Has anything below been altered? A neighbour who removed a chimney breast, widened an opening or converted a garage may have changed the load path under your floor.

• Is there movement at the junction — cracking, dropped lintels, a floor that falls away towards the boundary?

• Is there damp or timber decay at the interface, where two roofs, two gutters or two damp-proof courses meet and nobody owns the joint?

• What could not be seen? If there is no access to the space below, the report has to say so plainly, and that limitation is part of the finding.

If you are weighing up report levels generally, our guide to how the two RICS report levels differ in scope and depth is the clearest place to start. For a property with a flying freehold, we would almost always steer you towards our RICS Level 3 building survey service, because the interesting parts of the building are precisely the parts a lighter inspection is not designed to interrogate.

What mortgage lenders do about it

There is no single industry rule, and that is the part buyers find most frustrating. Lenders set their own policy, publish it to conveyancers, and apply it case by case. Broadly, three positions exist.

A small number decline outright. Most will lend, but attach conditions — typically that the title carries the rights of support, shelter and entry described above, that enforceable covenants are in place and bind future owners, and that the conveyancer supplies a plan clearly marking the affected part. A third group will lend but restrict the loan-to-value, which quietly increases the deposit you need.

The practical consequence: find out your lender's position early, through your broker or conveyancer, rather than at the point the valuation report lands. A flying freehold discovered in week seven of a purchase costs far more in wasted fees than one identified in week one.

Indemnity insurance: useful, but often misunderstood

Flying freehold indemnity insurance is a one-off policy, usually arranged and paid for by the seller, that protects the buyer and the lender against financial loss arising from the defective title position. It is frequently the thing that unlocks a stalled transaction.

What it does not do is fix anything. It does not create a right of access you never had. It does not oblige your neighbour to repair the structure beneath your bedroom. It pays out if a loss crystallises — it does not prevent the loss.

Two practical points your conveyancer will raise. Insurers normally require that nobody approaches the neighbour or the third party about the defect, because doing so can void the policy before it starts. And the policy should be checked to confirm it extends to successors in title, so that it still protects whoever buys the house from you.

A sensible order of play before exchange

1. Ask the estate agent, in writing, whether the seller is aware of a flying or creeping freehold. Silence is not an answer.

2. Get the title register and plan, and have your conveyancer map the flying element against the title plan.

3. Tell your broker before the mortgage application, not after.

4. Instruct a level three inspection with the flying freehold flagged in your instructions, so the surveyor knows to concentrate on the junction.

5. Read the survey and the title report side by side. A missing right of entry matters far more if the surveyor has found decay in the structure you cannot reach.

6. Then negotiate — indemnity, deed of covenant, price adjustment, or all three.

If the report comes back with findings you were not expecting, our note on what to do when a survey turns something up sets out how to price the issue rather than panic about it.

Frequently asked questions

Can you get a mortgage on a flying freehold?

Usually, yes. Most lenders will consider one, subject to their own conditions about the rights in the title, enforceable covenants, indemnity cover and sometimes the proportion of the property affected. A minority decline outright, so the lender needs identifying early.

Does a flying freehold make a house harder to sell?

It narrows the buyer pool a little, mainly because it narrows the lender pool. Where the title carries proper rights of support and access, and indemnity cover is in place and transferable, most sales proceed normally. Where nothing has ever been documented, expect a slower sale and more questions.

Who pays for flying freehold indemnity insurance?

Convention is that the seller pays, because the defect existed before the buyer arrived, and some lenders insist the seller arranges it. It is negotiable, and on a one-off premium it is rarely the sticking point.

Is a Level 2 survey enough if the flying freehold is tiny?

Sometimes. If the oversailing element is genuinely small, the property is modern and the title is clean, a level two report may be proportionate. Where the building is Victorian, the supporting structure has clearly been altered, or the title is silent on repair, the extra scope of a level three inspection is what tells you whether the legal risk is also a physical one.

Getting a straight answer on your property

A flying freehold is not a reason to walk away from a house. It is a reason to know exactly what you are buying, in enough detail that you can price it and insure it properly.

Nivek Surveying Services carries out RICS Level 2 and Level 3 residential surveys and Red Book valuations across Nottingham, Derby, Leicester, Coventry and Mansfield. If your title report has raised a flying or creeping freehold, tell us when you book and we will make the junction a specific focus of the inspection.

Written by Kevin, RICS Registered Valuer and Chartered Surveyor at Nivek Surveying Services. Published 9 August 2026. Last updated 9 August 2026.