Landlord and tenant — Whether roof space on top floor of a building subdivided into six flats was included in the demise of the top-floor flat — Plaintiff was owner of a large Victorian house which he had converted into flats, of which he retained the flat on the ground floor and basement — Defendant held the residue of a 99-year lease of the top-floor flat — The issue in the present case was whether the lease of the top-floor flat to the defendant’s predecessor in title in 1963 did or did not include the disputed roof space which formed part of the top floor — The parcels of the lease did not expressly mention the
Appeal recalled the rule that a plan which is for the purpose of identification
only cannot control the parcels but where the parcels are not explicit the plan
may be looked at to solve problems left undecided by the parcels — Here the
parcels contained a demise of the flat on the second floor as a whole; there
was no reservation to the lessor of the roof space or a right of access to it;
there was no place for an easement of necessity within the Wheeldon v Burrows
doctrine; and it was permissible to note that at the time of the demise there
was a means of access to the roof space from the top-floor flat — The parcels
were therefore explicit and it was not appropriate to look at the plan — The
judge below had come to the correct conclusion — Appeal dismissed
The following
cases are referred to in this report.
Graystone
Property Investments Ltd v Margulies [1983]
47 P&CR 472; [1984] EGD 267; (1983) 269 EG 538, CA
Hopgood v Brown [1955] 1 WLR 213; [1955] 1 All ER 550, CA
Wheeldon v Burrows (1879) 12 Ch D 31
Wigginton
& Milner Ltd v Winster Engineering Ltd [1978]
1 WLR 1462; [1978] 3 All ER 436, CA
This was an
appeal by the plaintiff, Charles Hatfield, the freehold owner of Tedstone
House, Lympstone, Devon, from the decision of Judge Sir Jonathan Clarke, at
Exeter County Court, in favour of Mrs Deborah June Moss, the lessee under a
99-year lease from September 29 1962 of flat no 6, on the top floor of Tedstone
House. Tedstone House was a large late-Victorian house with three floors and a
basement.
Thomas
Field-Fisher QC and John Montague (instructed by Lovell Son & Pitfield,
agents for McKenzie & Chester, of Exeter) appeared on behalf of the
appellant; Jonathan Marks (instructed by Kenwright & Co, agents for Crosse
& Crosse, of Exeter) represented the respondent.
Giving
judgment, NOURSE LJ said: This is an appeal from a decision of His Honour Judge
Sir Jonathan Clarke given in the Exeter County Court on April 10 1987 in a
dispute between landlord and tenant.
The plaintiff,
Mr Charles Hatfield, is the freehold owner of a largish late-Victorian house
built on three floors with a basement, known as Tedstone House, Lympstone in
Devon. In the early 1960s that house was converted by the plaintiff into six
flats, some of which have since been let on 99-year leases and some on shorter
tenancies. The plaintiff retains and occupies the flat on the ground floor and
basement.
In 1985 the
defendant, Mrs Deborah June Moss, acquired the residue of a 99-year lease from
September 29 1962 of flat no 6, which is on the second or top floor of the
house. She has lived there since with her husband, Mr Barry Moss, and their
children. During much of that time Mr and Mrs Moss have been in dispute with
the plaintiff. The disputes extended to various matters. All but one of them
have now been disposed of, either by abandonment of the complaint or by the
decision of the learned judge. The only question which remains is whether the
demise to the defendant’s predecessor in title did or did not include an area
of roof space which forms part of the second floor. Judge Clarke held that it
did, and the plaintiff has now appealed to this court.
The lease of
flat no 6 was made on March 1 1963 between the plaintiff and his wife of the
one part and a Mr N C Harris of the other part. It recited, first, that the
plaintiff and his wife were the fee simple owners of Tedstone House, which was
defined as ‘the House’, and that it was divided into flats; and, secondly, ‘It
is intended to demise all the flats in the house upon terms similar to those
herein contained.’
Clause 1 of
the lease contained the demise. I will quote parts of that clause and refer to
other parts of it. The parcels were expressed in these terms:
ALL THAT
tenement or flat (hereinafter called the demised premises) on the second floor
of and being Number 6 flat in the house and which is for the purpose of
identification shown edged red on the plan hereto annexed TOGETHER WITH . . .
There are then
five items of property mentioned in five lettered subclauses.
Subclause (a)
refers to the staircase leading to the demised premises from the hallway on the
first floor of the house and the door at the foot thereof and a party wall.
Subclause (b)
refers to the joists and floors of the demised premises.
Subclause (c)
refers to a plot of garden ground which is completely immaterial for present
purposes.
Subclause (d)
starts in these terms: ‘all exterior walls and windows of the demised premises
and the main roof of the house . . .’
Subclause (e)
refers to certain rights set out in clause 2 of the lease. I need not refer to
those rights, but I should mention that, by clause 3(ii), the demise is made
subject to ‘All easements and similar rights enjoyed by the other flats in the
house (including the rights of passage and running of gas, electricity, water
and soil through pipes, wires, conduits and drains in and under or upon the
demised premises)’.
Finally, I
should mention clause 4(7), which contains a covenant by the tenant in a
familiar form to permit the landlords or their agents to enter and examine the
condition of the demised premises twice-yearly at reasonable times.
The plan
attached to the lease appears to have been an architect’s plan, prepared in May
1959 and amended in November of that year, for the proposed conversion of the
house into the six flats. It includes a plan of the second floor. That is
basically square in shape, and the red line, instead of running all the way
round the square, leaves out, in the bottom left-hand corner, what appear to be
two parts of the property: first, two bathrooms serving flats nos 4 and 5 which
are on a mezzanine floor between the first and second floors; second, and more
important, a large space which is described as ‘roof space’. This space appears
to be wholly outside the red line, and therefore, so far as the plan is
concerned, it is not included in the flat. Moreover, although it is on the same
level as the rest of the rooms in the flat, it does not appear from the plan to
have a means of access from them.
In fact it
appears clear (and the contrary has not been suggested on behalf of the
plaintiff) that at the date of the demise in 1963 there was a door leading from
the main part of the second floor into the roof space which also comprised an
area of corridor shape moving towards the middle of the building and not shown
as such on the plan. So there was access to the roof space at that time.
Moreover, there was no access to it by any other means. There was evidence from
the plaintiff at the trial that about 12 or 15 years ago a trapdoor was made in
the ceiling of one of the bedrooms of flat no 5, which is on the first floor
and is underneath the roof space, so that access could be made to the roof
space from that flat. That was evidently done in order to give access to two
additional cold-water tanks which were installed by the plaintiff at about that
time in the roof space, the two original tanks, which had formerly served the
whole house, being installed in a room or cupboard in the main part of flat no
6, which bears the legend ‘tank room’ on the annexed plan.
The present
position, which is not material to a decision of the question of construction
which now confronts us, is that Mr and Mrs Moss have converted the roof space
into two different areas separated by the water tanks. They have also moved the
position of the original door as an access to the larger area and have made a
new door as a means of access to the smaller. They have carpeted those areas.
They have, I think, lined the walls with plastic imitation wood, and possibly
the roof rafters as well. There is no natural light, since there are no windows
in this sloping roof. The areas are used, I think, in one case as a playroom
for the children, and in the other for general storage.
The basic
submission of Mr Field-Fisher on behalf of the plaintiff is that the parcels in
the lease are not explicit as to the subject-matter of the demise; more
especially, are not explicit as to whether the roof
submits, the court is entitled — indeed bound — to look at the plan in order to
resolve the problem. In support of that submission he relies on the general
statement of principle in regard to plans expressed to be for the purposes of
identification only or the like which is contained in the judgment of Buckley
LJ in Wigginton & Milner Ltd v Winster Engineering Ltd [1978]
1 WLR 1462 at pp 1473G to 1474B:
When a court
is required to decide what property passed under a particular conveyance, it
must have regard to the conveyance as a whole, including any plan which forms
part of it. It is from the conveyance as a whole that the intention must be
ascertained. To the extent that the conveyance stipulates that one part of it
shall prevail over another part of it in the event of there being any
contradiction between them in the ascertainment of the parties’ intention the
court must of course give effect to that stipulation. So if the conveyance
stipulates that the plan shall not control the description of the parcels, the
court must have due regard to that stipulation; but in so far as the plan does
not conflict with the parcels, I can see no reason why, because it is described
as being ‘for identification only’, it should not be looked at to assist in
understanding the description of the parcels. The process of identification is
in fact the process of discovering what land was intended to pass under the
conveyance, and that is the precise purpose which the plan is said to serve.
Accordingly, so long as the plan does not come into conflict with anything
which is explicit in the description of the parcels, the fact that it is said
to be ‘for the purposes of identification only’ does not appear to me to
exclude it from consideration in solving problems which are left undecided by
what is explicit in the description of any parcel.
With that
judgment Bridge LJ and Sir David Cairns agreed. The judgment of Bridge LJ was
to much the same effect, and I observe that at p 1475F-G he said that the
propositions which he had stated and the cases which illustrated them were
simply applications of the general principle expressed by Jenkins LJ in Hopgood
v Brown [1955] 1 WLR 213 at p 228, that a plan which is said to be for
the purpose of identification only ‘cannot control the parcels in the body of
the deed’.
From that case
it is clear that, provided a plan does not conflict with explicit descriptions
in the parcels, the fact that it is said to be for the purposes of
identification only or the like does not exclude it from consideration in order
to solve problems left undecided by the parcels themselves.
So the first
thing which we have to do is to decide whether the parcels in this lease are
explicit as to the subject-matter of the demise or not. If they are not, we can
look at the plan. If they are, the plan cannot control them.
I start with
the wording of the parcels themselves. What is expressed to be demised is the
‘tenement or flat . . . on the second floor of and being Number 6 flat in the
house’. That seems to be a demise of the flat on the second floor of the house.
There was and is only one such flat. Mr Field-Fisher says, correctly, that the
draftsman could have been more explicit by stating that flat no 6 extended to
the whole of the second floor of the house. But the fact that he did not do so
does not mean that the description is not capable of applying to that extent.
It is undoubtedly permissible, and the contrary is not suggested, for us to
look at the physical state of the property at the time of the demise in 1963.
As I have said, there was then a means of access to the roof space from the
main part of flat no 6. The primary submission of Mr Marks, on behalf of Mrs
Moss, is that anyone who went into the flat at that time would have been under
the reasonable impression that the area of roof space was intended to be
enjoyed together with, and as part of, flat no 6. The fact that it was not
fully improved, in the sense that the roof rafters were open to view and the
floor may not have been fully boarded, is not a decisive factor. At that time
access could only be obtained from the main part of the flat. On that footing
it could not reasonably have been thought that anyone else was intended to have
any enjoyment of, or rights over, the roof space.
Second, Mr
Marks relies on three of the lettered subparas of clause 1. He places reliance
on the demise of the staircase in (a), and also of the joists and floors of the
demised premises in (b), although it now appears likely that the joists and
floors underlying the roof space had already been demised to the lessee of flat
no 5 in the previous year. I had not myself attached much weight to either of
those two subclauses, but it does seem to me that importance ought to be
attached to subclause (d). It is clear that that subclause contains a demise of
the whole of the main roof of the house and not merely that part of it which
overtops the demised premises. That is not in itself conclusive. But it is
natural to suppose that, if the plaintiff had intended to retain the roof space
for his own enjoyment, he would, in view of the manner in which these leases
have been drafted, have retained that part of the roof which overtops the roof
space. I say that because the leases have the curious feature of granting those
parts of the main walls which form part of each flat as part of the demise, and
under the repairing covenants each tenant has to keep his demised premises in
repair. That would mean, as I understand it, that you might get at least two,
perhaps three, tenants responsible for the repair of the same main wall of the
building. However odd it may be, it would have been entirely consistent with
that scheme of things for the plaintiff to retain the roof above the roof
space.
Third, Mr
Marks relies on the second recital to the lease, which makes it clear that the
plaintiff intended to demise all the flats in the house; in other words, that
he did not intend to retain for himself any part of the property unless, of
course, it were an individual flat or flats. That again, says Mr Marks, shows
that the plaintiff must have intended to dispose of the roof space as part of
flat no 6.
Fourth, and
perhaps most important of all, Mr Marks relies on the fact that the plaintiff
reserved neither to himself nor to any of the other tenants any right of access
to the roof space. It will be seen from the terms of clause 3(2), which I have
read, that the only rights so reserved were rights to the passage and running
of gas, electricity, water and soil and so forth. I think that it would be
impossible, as a matter of express reservation, to construe that provision as
reserving, either to the plaintiff as landlord or to the tenant of any other
flat, a right of access to the roof space.
However, Mr
Field-Fisher says that, even without an express reservation, the landlord and
the other tenants were and are entitled to a right of access as an easement of
necessity. That is something which was not at all explored in the court below.
It might to some extent have been a matter of evidence, in particular as to
what exactly the necessity was at the time of the grant in 1963. I suspect that
the reason why it was not explored was because it was realised that the
argument simply could not succeed. The doctrine of Wheeldon v Burrows
is extremely strict in regard to reservations, and it does not seem to me from
what we know of the property in 1963 that any case could have been made out for
saying that there was any necessity to get into the roof space.
The final
feature of the lease which I should mention is another rather curious one. If
the plaintiff’s argument is correct, it would appear to prevent him or his
agents from getting access to the roof space twice a year at reasonable times
under the tenant’s covenant contained in clause 4(7). If his argument is
correct, the roof space does not form part of the demised premises and, without
an express right of access, his right to get in there under that covenant would
disappear. However, that is an oddity of the case on which nothing very much
turns.
In the light
of all the matters relied on by Mr Marks, I have come to a clear conclusion
that he is correct in saying that the parcels of the lease, when construed in
relation to the physical state of the premises in 1963, are explicit as to the
subject-matter of the demise. On that footing it is not appropriate to look at
the plan. But, as Mr Marks correctly points out, even if it were, it can only
be looked at for assistance. It becomes a part of the material which the court
can consider. If it were to perform that role, it would have to be said that it
is inaccurate in three respects — admittedly comparatively minor. For one
thing, it excludes from bedroom no 1 a small rectangle of space which ought to
have been included, and for another it includes a small rectangle of what we
now know is the roof space, which ought to have been excluded. Third, the plan
does not fully describe the roof space as it in fact is, in that it omits the
corridor to which I have referred and suggests that there was in fact no means
of access from the main part of the flat. So, even if I had thought that it was
permissible and appropriate to look at the plan, we would have had to be
careful not to attach too much weight to it.
Mr
Field-Fisher also places reliance on the fact that, when the access from the
bedroom in flat no 5 was made to the roof space some 12 or 15 years ago, no
complaint was evidently made by Mrs Moss’ immediate predecessor in title, who I
think was the tenant of flat no 6 for some 20 years. That I am sure was the
case, but it seems very probable that she did not realise that the roof space
was in fact included in her demise. There was evidence from the plaintiff that
he had at one time seen some paint pots in the roofspace, and that when he had
asked her to remove them she had immediately complied. But, whether she did or
did not appreciate the full extent of her rights, the fact that this
arrangement was made with her consent in order to benefit both the landlord and
the tenant of flat no 5 cannot in some
roof space.
I am glad to
be able to record that, whatever the strict legal rights of the parties may be,
Mr Moss, the defendant’s husband, has made it clear that they would not object
to the landlord or the tenants having access to the roof space if they needed
it, for example, if there was flooding from the water tanks or something like
that.
The learned
judge appears to have decided the case in favour of Mrs Moss primarily on the
footing that the roof space passed with the demise of the main roof. Speaking
for myself, I think it unlikely that that is a correct construction of this
lease, particularly when the draftsman has taken such care to distinguish
between the various components of the building. However, it is unnecessary to
express a final view because we did not hear Mr Marks’ alternative argument on
that point. Later in his judgment the learned judge said this:
It is argued
by the Lessor and said in evidence that he deliberately intended to retain that
space. Against the background that in 1962 or 1963 his intention was to let all
the flats on 99 year Leases I reject the evidence that he intended to retain
that as part of the reversion. It was not intended. Had it been so the
conveyancer would have made it clear in two ways by an express reference by
exclusion on the face of the document as to the demise of the rest of the roof
and/or by providing an express right for the freehold reversioner to gain
access to it.
Freehold
reversioners of a building wholly split into flats have no intention to keep an
area for which they have no use or access.
In that
passage the learned judge appears to have been dealing with the matter on the
broader basis of decision which I myself prefer. The only criticism which might
be made is that the judge was on any footing bound to reject the oral evidence
of the plaintiff on the simple ground that it was inadmissible. But, as I have
attempted to show, his conclusion is in any event well justified on the
conventional basis of construing the terms of the lease against the physical
state of the premises at the date on which it was granted.
For these
reasons I think that the learned judge’s decision was entirely correct and I
would dismiss this appeal accordingly.
Agreeing, MANN
LJ said: In my judgment the roof space forms part of the demise of flat no 6.
In 1963 that space was accessible only from flat no 6 and there was no
constraint upon accessibility. There is no reservation of a right of access to
the landlord or to any of the other tenants. It seems to me improbable that the
landlord wished to reserve unto himself a void to which no one could have
access. I derive comfort in that view from the observations of Griffiths LJ (as
he then was) in Graystone Property Investments Ltd v Margulies
(1983) 47 P&CR 472 at p 478.
The appeal
was dismissed with costs.
