It is often said that the owner of the surface of land owns everything extending to the heavens above and to the centre of the earth below. Beatsons Building Supplies Ltd v Noble [2015] PLSCS 153 is a Scottish case, which reminds us that the application of the rule has both advantages and disadvantages. It concerned a lease of an industrial building, together with a service yard. Sections of a culvert below the yard had become deformed and no longer provided any support. Consequently, the concrete paving in the yard was cracking and subsiding. The landlord claimed that the tenant was liable to effect the requisite repairs. The tenant considered that they were the landlord’s responsibility.
One of the preliminary issues that the court had to consider was whether the premises demised by the lease included the culvert. The premises were defined as “all and whole those industrial premises forming 96-98 Eastfield Industrial Estate, Penicuik shown outlined in red on the plan; together with (a) the whole buildings … (c) the whole parts, privileges and pertinents of the said subjects; (d) the whole rights common, mutual and sole effeiring thereto”.
The tenant argued that the vertical extent of the premises comprised whatever was necessary for the use of the yard. However, no clear horizontal boundary suggested itself, either above or below the yard, and the definition of the premises in the lease was full and unlimited. The language was expansive and inclusive. There was no hint that anything was being reserved or separated from the grant to the tenant: indeed, quite the reverse. There was no uncertainty in the wording in the lease and the definition of the premises could not properly be described as vague, uncertain or ambiguous.
At common law, unless otherwise agreed, or displaced by statutory provision, the position is that a lease of premises includes everything from the heavens to the centre of the earth – and the fact that the lease did not contain any contradictory provisions demonstrated that the parties had not intended to change this. The tenant invited the court to infer something different from the rights granted and reserved as between the parties. However, the judge considered that this would be the most oblique and Delphic method of separating ownership of different strata and refused to assume that responsible draftsmen would knowingly adopt such an approach, particularly in a lengthy and detailed lease.
Furthermore, the fact that the tenant might not have expected to be obliged to maintain conduits that crossed its premises, without serving them, was of no assistance because a tenant’s expectations are not a guide to contractual intent. The existence of the culvert was recorded on the land certificate for the property and no tenant, exercising even basic due diligence, could be unaware of the fact that the culvert existed. And, even if it were unaware, awareness is not a precursor for liability.
The case is a perfect foil for the English decision in Lejonvarn v Cromwell Mansions Management Co Ltd [2011] EWHC 3838 (Ch), in which the judge decided that the legal maxim that a lease of premises includes everything from the heavens to the centre of the earth had been displaced. The crucial difference there seems to have been that the premises in question were in multiple occupation and had not been let as a whole.
Allyson Colby is a property law consultant
