Claimant lessee of town house and mews dwelling seeking to acquire freehold – Lessee seeking to enfranchise either or both properties under Leasehold Reform Act 1967 – Mews dwelling partly undercut by basement extending from house – Whether both buildings constituting a single house – Whether undercutting precluding claim limited to town house – Whether statutory exclusion of town house claim inconsistent with Human Rights Act 1998
The respondent landlord (L) was the freehold owner of a site in London W1, which incorporated a house at 76 Harley Street (no 76) and a mews building at no 27 Weymouth Mews (the mews). The mews was situated to the rear of no 76, at a slightly lower level. These two buildings, both built in 1775, were separated by a small yard. No 76 possessed a basement that ran beneath the yard and encompassed the entire area (the extended basement), which would otherwise have formed the basement of the mews.
In 1949 L granted a 48-year lease of the site to A, who, after carrying out various conversions, sublet the ground and first floor of no 27 (the maisonette) to a doctor, M. In 1960 M took a 17-year underlease of the mews. With the landlord’s permission, M installed a staircase leading to the extended basement, where he created two blocked-off storerooms, which effectively reduced the area of the extended basement and, hence, the mews building’s overhang, to approximately 27.3m².
In 1974 M ceased to occupy the maisonette and assigned the underlease of the mews to G. During G’s occupancy, a door leading from the maisonette to the ground floor remained closed and unused. In 1987 the appellant tenant (T) acquired the unexpired residue of the 1949 lease and took up residence in the maisonette. G’s underlease expired in April 1997.
By notices served in April 1997, T made various alternative claims to enfranchisement under the Leasehold Reform Act 1967 (the Act), which were disputed by L. At a preliminary hearing in Central London County Court (see [2000] EGCS 37), the judged ruled, in favour of L, that: (i) for the purpose of section 1(1) of the Act, the entirety of the property comprised in the 1949 lease could not be described as a house “reasonably so called” because, at the date of the notices, each building was a house in its own right; and (ii) a claim to no 27 only would fail for the reasons stated in section 2(2) of the Act, because of the undercutting created by the extended basement.
The tenant appealed, contending that the exclusion contained in section 2(2) was inconsistent with Articles 8 and 14 of the European Convention on Human Rights (respect for private life and prohibition of discrimination), which had become applicable since the county court hearing.
Held: The appeal was allowed.
1. While the judge had rightly taken a common-sense and objective approach to the first issue, he had fallen into error by first asking himself whether he was considering one house or two. That approach failed to take account of the clear guidance given by the House of Lords in Tandon v Trustees of Spurgeons Homes [1982] 2 EGLR 73. The presence of more than one building was just one of the factors to be considered when determining whether the property in question was a house “reasonably so called”. When the 1949 lease was granted, the property was still described as a house and garage building. Since then, the physical shape had remained the same. It was sufficient that the property was capable of being reasonably described as a single house. That it could reasonably be referred to as two houses was immaterial: see per Salmon LJ in Lake v Bennett (1971) 219 EG 945. The cases cited by L afforded no authority to the contrary: Duke of Westminster v Birrane [1995] 1 EGLR 89; Wolfv Crutchley (1971) 217 EG 401; Peck v Anicar Properties Ltd (1970) 215 EG 1135; Sharpe v Duke Street Securities NV [1987] 2 EGLR 106; and Malpas v St Ermin’s Property Co Ltd [1992] 1 EGLR 109 considered.
2. Although no longer determinative of the outcome, T’s argument as to the validity of section 2(2) was to be rejected. The trial judge had rightly found that the two buildings were not structurally separated, and that “a material part” of no 27 lay below the mews. The materiality lay in the fact that the undercutting might prejudice the enjoyment of another part of the structure: see per Nourse LJ in Duke of Westminster. So long as the material test was thus applied, the discrimination against tenants of flats, or of other premises overhanging or undershooting other units, was objectively justifiable and proportionate, and, accordingly, compatible with the Convention rights relied upon.
Paul Morgan QC and Edward Cousins (instructed by Mishcon de Reya) appeared for the appellant tenant; Judith Jackson QC and Timothy Harry (instructed by Speechly Bircham) appeared for the respondent landlord.
Alan Cooklin, barrister
