An enfranchisement battle over a Belgravia mews property, which raises the question whether it is a “house” for the purposes of the legislation, is heading for the High Court this November.
An appeal by West End Investments (Cowell Group) against a Central London County Court ruling by Judge Dight has been listed for 11-13 November. The landlord, opposing an enfranchisement claim by Birchlea Ltd, had argued that the property at 3 Grosvenor Gardens Mews was not a “house” for the purposes of section 2 of the Leasehold Reform Act 1967, under the exception in the section that applies when a “material part lies above or below a part of the structure not comprised in the house”.
However, Judge Dight ruled in April that it was a house for the purposes of the section.
Tim Reid, a senior associate at Hogan Lovells, which represented Birchlea, said that, if the landlord’s “novel” arguments had succeeded, it could have been a huge blow to enfranchisement claims in similar properties.
He said that the 1967 Act gave to long leasehold residential tenants the right, subject to specific exceptions, to acquire the freehold of the house they own, subject to exceptions which largely exist for specific policy reasons or established legal reasons, such as where enfranchisement would lead to the creation of a so-called “flying freehold”.
He continued: “These days, landlords are having to be more creative when trying to protect their properties from enfranchisement. In the 47 years since the 1967 Act came into force, hundreds of terraced or mews houses like the house in question have been enfranchised without facing such a challenge.
“West End Investments’ argument hinged on the neighbouring property being taller than 3 Grosvenor Gardens Mews East, such that that there was an overlap between the two properties of just the thickness of one brick. Whilst in this instance the neighbouring property is twice the height of the house, the same argument (had it been successful) would prevent enfranchisement wherever a neighbouring property in a terrace was even slightly taller (for example because it had a mansard roof), and could also prevent collective enfranchisement of terraced buildings.
“As pointed out by the Supreme Court in Hosebay v Day [2012] UKSC 41; [2012] 3 EGLR 33 ‘it is the duty of the court to construe the 1993 Act fairly and with a view, if possible, to making it effective to confer on tenants those advantages which parliament must have intended them to enjoy’.
“When it comes down to it, the house is a fully vertical division of a building and is clearly a house to which the right to enfranchise should apply. This case should hopefully mark an end to another technical argument on the part of landlords, which threatened to undermine Parliament’s intention and a tenant’s right to acquire the property they occupy.”
Birchlea Ltd v West End Investments (Cowell Group) Ltd
