Landlord and tenant – Garage – Airspace – Defendants holding leases of flats and garages – Separate lease of airspace above garage roof to third party – Third party claimant wishing to construct new flats in airspace above garage blocks – Whether defendants’ demised premises including garage roof – Whether premises including airspace above garages – Whether lease implying covenant by lessor not to construct further flats – Whether claimant entitled to erect columns outside garage blocks to support new flats – Judgment in favour of defendants
The property was a residential development in Ealing, West London. It comprised a block of 12 flats and two garage blocks located behind the flats. The buildings had been erected in the early 1960s and the flats and garages were let on 999 year leases. Each lease required the lessee to pay 1/12th of the cost of insurance and services.
In 2007, the freeholder granted a lease of the airspace above the garages. The claimant was a developer and the current lessee under that lease and wished to construct a flat above each of the garage blocks. The structure of the garage blocks was inadequate to support the new flats. Therefore, the claimant proposed to erect steel columns resting on their own foundations and the new flats would sit on horizontal steels supported by the columns. Issues arose concerning the claimant’s ability to develop as it wished. The majority of the defendants opposed the claimant’s plans.
The court was asked to determine a number of issues relating to the proposed development, including: (i) the extent of the physical premises demised by the flat and garage lease and, in particular, whether the demised premises included the roof of the garage; (ii) whether the demised premises included the airspace above the individual garage; (iii) whether the court should imply into the leases of the demised premises a covenant by the lessor not to construct further flats on the estate; and (iv) whether claimant was entitled to erect columns outside the garage blocks to support the new flats.
Held: Judgment was given in favour of the defendants.
(1) The physical structure of the garages demised included the floor, doors, roof timbers, roof and walls which enclosed the garage, save that in the case of a wall separating one garage from another, the demise extended to one half in depth of that wall. The court did not give undue importance to the fact that there was a single roof over each block of garages. Provision had been made in each lease which would be relevant if a lessee of a garage wished to repair the roof above the garage and needed to have access to an adjoining garage in order to so do: Tennant Radiant Heat Ltd v Warrington Development Corporation [1988] 1 EGLR 41 considered.
(2) If the rights granted in the present case were not leasehold but freehold, then one would have expected the parties transferring a freehold of land on which a garage was built, or even transferring a freehold of “a garage”, to have intended that the freehold included the airspace above the garage. The position was not necessarily the same with a leasehold grant. However, in commercial terms, a grant for 999 years was much closer to a freehold than to a lease for a shorter term. On balance, those considerations pointed towards the conclusion that the parties had intended that the airspace above a garage was to be included in the demise. Where one was dealing with a demise of a building, where the wording of the demise was expressed by reference to a vertical division, and there was no wording expressing any horizontal division, it was natural to react to that wording by holding that there was no horizontal cut off which excluded the airspace above the building or the sub-soil below the building. Accordingly, in the present case, the demise of a garage included the airspace above the garage: Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334, Straudley Investments Ltd v Barpress [1987] 1 EGLR 69; [1987] 238 2 EG 1124, Ravengate Estates Ltd v Horizon Housing Group Ltd [2007] EWCA Civ 1368, Bocardo SA v Star Energy UK Offshore Ltd [2010] UKSC 35; [2010] 3 EGLR 145, Rosebery Ltd v Rockless Ltd [2011] 1 EGLR 105, Lejonvarn v Cromwell Mansions Management Co Ltd [2011] EWHC 3838 (Ch); [2012] 2 EGLR 50
(3) The language of the leases clearly created a scheme of covenants applicable to the estate that included the airspace above the garage blocks. The scheme bound the lessor in relation to parts of the scheme which were not the subject of leases. As and when leases of those parts were later granted those lessees would be bound by the scheme. As a result, it was not necessary to imply a term restricting the number of flats in order to preserve the integrity of the letting scheme. The fact that the flat and garage leases imposed a scheme of covenants did not justify the court implying a restriction on the number of flats which might be constructed. Nor did the provisions dealing with the cost of insurance and services justify the suggested implication: Brunner v Greenslade [1971] Ch 993, Finchbourne Ltd v Rodrigues [1976] 1 EGLR 51, Pole Properties Ltd v Fineberg [1981] 2 EGLR 39 and Devonshire Reid Properties Ltd v Trenaman [1997] 1 EGLR 45 considered.
(4) The court’s overall reaction to the strongly competing rival arguments was that the wording of the schedule to the lease was just enough to confer on the claimant the right to erect supports outside the garages in circumstances where the claimant would not be able to carry out the intended development without such a right: Cherry Tree Investments Ltd v Landmain Ltd [2012] EWCA Civ 736; [2012] 2 EGLR 141 considered.
Gary Blaker (instructed by Carter Lemon Camersons LLP) appeared for the claimant; Piers Harrison (instructed by Volks Hedley Solicitors) appeared for the first, second, third, fourth, fifth, ninth, 10th, 14th, 15th and 16th defendants; The 17th and 18th defendants appeared in person; The remaining defendants did not appear and were not represented.
Eileen O’Grady, barrister
