Key Takeaways
- If your solicitor failed to advise on a flying freehold, you may be able to claim where the inadequate advice caused a measurable financial loss.
- A flying freehold arises where part of a property extends over, under or through a neighbouring freehold property.
- Weak access, support or repair rights can restrict mortgage options, reduce buyer interest and make a future sale harder.
- Conveyancing solicitors should examine title registers, deeds, transfers and enquiries, because title plans show general boundaries only.
- A flying freehold is not automatically unmortgageable, but lenders may require suitable rights, insurance or further legal protection.
- Gather your conveyancing file, title documents, lender correspondence, valuation evidence and proof of any failed sale, reduced offer or remedial expense.
- Claims usually have a six-year limitation period, though a later three-year period may sometimes apply after knowledge of the problem.
- Go Legal is rated Excellent with over 300 five-star reviews and 5/5 on Trustpilot and Google, placing our solicitors among the best-reviewed litigation lawyers in England and Wales.
Can You Claim If Your Solicitor Failed to Advise on a Flying Freehold?
You may be able to claim if your conveyancing solicitor failed to advise on a flying freehold and that failure caused you a measurable financial loss. Weak rights of access, support or repair can later lead to mortgage problems, a failed sale or unexpected legal expense.
Whether the omission amounts to conveyancing negligence in England and Wales turns on three questions. What should your solicitor have checked? What did the documents they actually received show? Can you evidence a real loss, such as a reduced offer, lender refusal, failed sale or remedial cost?
The problem is easy to miss. A title plan may not reveal the full legal position, because HM Land Registry plans generally show boundaries only in general terms.
What is a flying freehold and why does it matter?
A flying freehold exists where part of one freehold property extends over, under or through neighbouring land or property. A common example is a bedroom built above a shared passageway.
The physical arrangement is not the real difficulty. The difficulty is legal. The owner may have no right to enter the adjoining property to inspect, maintain or repair the affected structure. There may also be no enforceable obligation on the neighbouring owner to maintain a supporting wall, roof or other structural element.
A flying freehold is not automatically defective or unmortgageable. Whether it is acceptable depends on the title deeds, rights and obligations affecting both properties.
Weak or missing rights cause practical problems when repairs are needed. They can also affect refinancing, mortgage availability and resale. Owners should expect a flying freehold to reduce the pool of potential buyers when they sell. Some lenders will not lend on these properties at all. Others will lend only if there is evidence of rights of support, shelter, protection and entry for repair.
The UK Finance Lenders’ Handbook requires conveyancers to check the relevant lender’s requirements where a property is affected by a flying freehold. A lender may ask for any of the following:
- A deed of mutual covenant.
- Title indemnity insurance.
- A solicitor’s confirmation that the arrangement is acceptable.
- A plan identifying the affected area.
- Confirmation that the title is good and marketable.
These requirements vary between lenders and between individual cases. They are not universal rules that apply to every transaction.
What should your conveyancing solicitor have done?
Your conveyancing solicitor should have investigated the legal title, identified the flying element and explained the practical consequences before you committed to the purchase.
That investigation would normally cover:
- The title register and title plan.
- Filed deeds, transfer deeds and conveyances.
- Replies to enquiries.
- Survey material.
- The mortgage instructions.
The key task is to compare the physical layout of the property with the rights and obligations recorded in the documents. The solicitor should consider whether the title gives adequate rights for:
- Support, shelter and protection.
- Entry to inspect, repair and maintain the affected structure.
- Access through neighbouring property where repairs require it.
- Contributions towards maintenance or repair.
- Insurance arrangements for the relevant structural parts.
- Enforcing obligations against future neighbouring owners.
Why a title plan may not show the full problem
An HM Land Registry title plan identifies only the general extent of the land. It does not usually fix the precise legal boundary, and it does not show every right a flying freehold needs.
HM Land Registry states: “All title plans show general boundaries unless the line of boundary is shown as having been determined under section 60 of the Land Registration Act 2002.” Its guidance on title plans confirms that the plan must be read with the register and the documents referred to in it.
HM Land Registry’s boundaries guidance goes further. It says there is “no standard tolerance, measurement or ratio” linking the general boundary on a title plan to the legal boundary.
In practice, a solicitor who relies on the plan alone may miss the flying element altogether. A transfer or conveyance may contain rights and obligations, or reveal their absence, in ways the plan never shows. The solicitor should examine the underlying deeds.
What should be explained before exchange?
If rights are missing or uncertain, the solicitor should explain the risk in clear terms, including the possible effect on repairs, mortgage lending and a future sale. Depending on the documents and the lender’s requirements, the options may include:
- A deed of mutual covenant between neighbouring owners.
- Title indemnity insurance.
- Further specialist title advice.
- Renegotiating the purchase price or terms.
- Deciding not to proceed.
If the solicitor advises you to proceed despite an unresolved title defect, they should first obtain your informed consent. That means making sure you understand the risk you are accepting.
If the solicitor also acts for your lender, they must report the issue where the mortgage instructions require it. Each lender’s requirements are different, so the solicitor should not assume that one lender’s approach applies to another.
If you believe important title documents were missed or inadequately explained, our solicitors can assess them as part of a professional negligence claim.
When does a failure to advise amount to negligence?
A failure to advise on a flying freehold may amount to negligence if three things are true:
- The documents available revealed a material risk.
- The solicitor should reasonably have investigated or advised on that risk.
- The failure caused you financial loss.
The question is not whether a perfect investigation could have uncovered every possible issue. Liability turns on four practical points:
- The scope of the retainer, meaning what the solicitor was engaged to do.
- The documents the solicitor actually received.
- Your instructions.
- The advice a reasonable solicitor would have given in those circumstances.
A document-led review should ask:
- What title documents, plans, deeds and enquiries did the solicitor receive?
- Did those documents reveal, or reasonably point towards, a flying freehold?
- Should the solicitor have made further enquiries or reviewed an underlying deed?
- Did the documents show missing rights of support, access, repair or enforcement?
- Did the solicitor explain the risk and the protections available, such as a deed of covenant, indemnity policy or specialist report?
- Were you advised to proceed despite an unresolved defect, and did you understand and expressly accept the risk?
- Would proper advice probably have changed your decision or the terms on which you proceeded?
- Did that decision result in a measurable loss?
A survey may reveal a physical feature, such as an overhanging room. However, a surveyor may spot that feature and still fail to alert the conveyancing solicitor. The solicitor’s duty is independent of the survey and turns on the title investigation. A physical observation cannot tell you whether rights of entry, support or maintenance are legally enforceable.
Missed features can be costly. In Bashir v Ali, the auctioneer, who was a surveyor, failed to spot a studio flat on the ground floor of the property being auctioned. The result was an expensive dispute that went to the Court of Appeal.
Evidence of your own questions can matter. Emails asking about mortgage suitability, resale prospects, shared access or repair arrangements may help show why the issue was important to your decision.
The lender’s instructions may also matter where the solicitor acted for both you and the lender. The UK Finance lender-specific requirements show how much these requirements differ between lenders. They are lender instructions, not general rules of English law.
What loss can you recover?
You can recover only a real, measurable financial loss caused by the solicitor’s failure. A concern that the property may be harder to sell in future is not enough by itself. You need evidence such as a failed sale, a reduced offer, a lender refusal or remedial expense.
Potential losses may include:
- Reasonable legal costs of obtaining a deed of mutual covenant or another remedial solution after completion.
- The cost of title indemnity insurance where it is an appropriate response.
- A reduction in property value, supported by a current valuation that addresses the title issue.
- Loss from a documented failed sale or reduced offer.
- Refinancing costs, or the difference in mortgage terms or interest rate caused by the title issue.
- Reasonable costs of dealing with a buyer’s or lender’s objection.
- A settlement payment to a buyer who withdrew because of the title problem.
The calculation compares your actual position with the position you would probably have been in with proper advice. That usually means asking whether you would have:
- Withdrawn from the purchase.
- Negotiated a lower price.
- Required protection before exchange.
- Proceeded on the same terms.
There may be no recoverable loss in some cases. Examples include where you would have bought the property anyway, where the lender accepted the title arrangement, or where the issue has caused no practical difficulty.
Evidence of reduced value or transaction loss
A current valuation should address the specific title defect, the missing rights and the effect on the market. A general valuation that ignores the flying freehold may carry little weight.
Useful transaction evidence can include:
- A buyer’s revised offer.
- Correspondence from the buyer’s solicitor.
- A lender’s additional conditions or refusal.
- A mortgage broker’s explanation of how your finance options changed.
- Invoices for remedial legal work or insurance.
- Communications showing why a sale or refinancing proposal failed.
What evidence do you need to prove your claim?
A claim against a solicitor over a flying freehold needs evidence of three things: what the solicitor knew, what they advised, and the loss that followed.
Build a file that covers the purchase, the discovery of the issue and the financial consequences. Preserve original documents, email attachments and notes made at the time. Do not rely on memory.
| Evidence | What it may show |
|---|---|
| Complete conveyancing file | The documents received, enquiries raised, advice given and decisions recorded |
| Official copies of both titles and historical title documents | The ownership structure, rights, burdens and reciprocal obligations |
| Filed deeds, transfer deeds, conveyances, lease documents and title plans | Whether the flying element and relevant rights were apparent |
| Property information form, fittings and contents form and replies to enquiries | Information supplied before the purchase |
| Survey reports, valuations and photographs | The physical arrangement and later market impact |
| Mortgage offer, lender instructions and lender correspondence | Whether the lender required the issue to be reported or resolved |
| Emails, attendance notes and reports on title | Questions you asked and warnings given or not given |
| Sale, refinancing and remedial-cost evidence | Whether the title issue caused an actual financial loss |
| Current valuation | Any reduction in value caused by the specific title problem |
Obtain the complete file from the solicitor as soon as possible. The solicitor is obliged to provide it, subject to any outstanding fees for unrelated work.
Legal professional privilege generally protects confidential communications between solicitor and client made for the purpose of legal advice. Preserve the file, written advice and emails carefully while you investigate a potential claim.
How to show causation and loss
Organise the evidence in date order. Start with the purchase documents. Then identify when the flying freehold was discovered. Finish with the sale, lending or repair problem that caused the loss.
This order separates two different questions: is there a title problem, and did that title problem cause a financial loss?
Some evidence carries more weight than others. A prospective buyer’s solicitor identifying missing repair rights is more persuasive than a general statement that the property could be hard to sell. Similarly, a lender’s written refusal, a withdrawn mortgage offer, or a valuation report naming the flying freehold as a material defect can be strong evidence of a flying freehold mortgage problem.
If you would like our solicitors to review your conveyancing record, title documents and financial evidence, you can book a free consultation.
What laws and deadlines apply?
The Limitation Act 1980 sets the time limits, and they can decide whether a claim remains available, however serious the title problem. A claim brought outside the relevant period is likely to be time-barred.
A professional negligence claim is usually subject to a six-year limitation period from the date of the negligent act or breach. A later three-year period may sometimes apply from the date of actual or constructive knowledge, subject to a statutory longstop:
- Section 14A. For relevant negligence claims, section 14A of the Limitation Act 1980 allows either six years from accrual of the cause of action or, if it expires later, three years from a starting date based on your relevant knowledge and your right to bring the claim.
- Section 14B. Section 14B of the Limitation Act 1980 imposes an overriding 15-year longstop for negligence claims not involving personal injury. It runs from the relevant act or omission, even if you have not yet discovered the problem.
The calculation depends on the type of claim, when the alleged breach occurred, when the loss arose and when you acquired the relevant knowledge. Discovering a flying freehold years after completion does not automatically mean the three-year period applies. Because the calculation is so fact-sensitive, check it urgently and do not delay taking advice.
What is the claims process?
A structured approach usually involves:
- Obtaining and preserving the conveyancing file and title documents.
- Identifying the missing or inadequate advice and the documents that should have prompted it.
- Obtaining valuation, sale, lender or remedial-cost evidence.
- Taking advice from a professional negligence solicitor on breach, causation, loss and limitation.
- Sending a detailed letter of claim under the Professional Negligence Pre-Action Protocol.
- Allowing the solicitor’s professional indemnity insurer to investigate, then negotiating or mediating.
- Issuing proceedings if settlement is not achieved and the claim remains viable.
Many claims settle without court proceedings, particularly where the evidence clearly identifies the missed title issue and the resulting loss. If settlement is not reached, proceedings are issued in the County Court or the High Court, depending on the value of the claim. The usual civil litigation process then applies: statements of case, disclosure, witness statements and trial.
How Go Legal can help with your flying freehold negligence claim
Go Legal is a London-based commercial litigation law firm acting for individuals, directors, professionals and businesses across England & Wales. We assess potential professional negligence claims against conveyancing solicitors.
Our solicitors examine the title documents, conveyancing file, lender correspondence and financial evidence. We then give you a clear view of five questions: duty of care, breach, causation, recoverable loss and limitation risk.
We can assist with:
- Reviewing title registers, plans, deeds and transfers.
- Identifying whether the file disclosed a material flying-freehold risk.
- Assessing evidence of a reduced offer, failed sale, refinancing issue or remedial expense.
- Preparing and pursuing a claim through negotiation with insurers or mediation.
- Representing clients in County Court or High Court proceedings where appropriate.
Go Legal is rated Excellent, with over 300 five-star reviews and a 5 out of 5 rating on Trustpilot and Google. You can learn more about our team, and look up the terms used in claims in our Professional Negligence Glossary.
Frequently Asked Questions
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Delay carries real risk. Limitation periods can bar a claim however strong the title problem, and key documents and correspondence become harder to obtain as time passes.
