Claim to acquire freehold – Lessee of town house and mews dwelling seeking to enfranchise one or both under Leasehold Reform Act 1967 – Mews dwelling partly undercut by basement extending from house – Whether both buildings constituted a single house – Whether undercutting precluded claim limited to town house
The respondent was the freehold owner of a site in London W1, on which stood a house at 76 Harley Street (the house) and a mews building at 27 Weymouth Mews. The latter, which stood at the rear of the house and at a lower level, had historically served as stables for the house. The two buildings were separated by a small yard. The house possessed a basement that, as built, extended beyond the rear wall and encompassed the entire area (the enlarged basement) that would otherwise have formed the basement of the mews building. The extent of the basement was partly manifested above ground by a “spine” that connected the two buildings.
In 1949 the respondent granted a long lease of the site to a predecessor of the applicant, who, after carrying out various conversions, sublet the ground and first floor of the house (the maisonette) to a doctor, M. In 1960 M took a 17-year underlease of the mews building for the purpose of using the ground floor as a garage and the first floor as a chauffeur’s flat. As permitted by the under-lease, M built a short stairway leading from the garage to a new doorway in the maisonette, subject to an obligation to make good the door opening on ceasing to occupy the maisonette. Under the same permission, M installed a staircase leading to the enlarged basement, where he created two store rooms that were blocked off. The effect of the latter work was to reduce the area of the enlarged basement, and hence the overhang by the mews building, to approximately 27.3m².
In 1974 M ceased to occupy the maisonette and assigned the underlease of the mews building to G. Thereafter, the door leading from the maisonette to the garage remained closed and unused. In 1987 the applicant acquired the lease and took up residence in the maisonette. G’s underlease expired on 1 April 1997.
By two notices dated April 1997, the applicant made various alternative claims to enfranchise under the Leasehold Reform Act 1967. These were disputed by the respondent. The issues before the court were: (i) whether a claim lay to the entire site, on the basis that the two buildings together constituted a house “reasonably so called” for the purpose of section 1(1) of the 1967 Act; (ii) whether, because of the overhang, a claim to either building on its own would fail for the reasons stated in section 2(2) of the Act; and (iii) whether the mews building, in any event, amounted to premises occupied with and used for the purposes of the house within the meaning of section 2(3) of the Act.
Held: The respondent succeeded on all three issues.
1. The first issue called for a common-sense and objective approach, there being no requirement to take either the lease or the portion occupied as a residence into account: see per Nourse LJ in Duke of Westminster v Birrane [1995] 1 EGLR 89. On the evidence before the court, the mews building was a separate unit when the 1960 underlease gave to M a personal right to gain access to the house. That right expired when M gave up possession of the mews building. The court was satisfied that at the date of the applicant’s notices each building was a house in its own right: Wolf v Crutchley (1971) 217 EG 401, Peck v Anicar Properties Ltd (1970) 215 EG 1135 and Gaidowski v Gonville & Caius College Cambridge [1976] 1 EGLR 72 considered.
2. Because of the existence of the basement, the houses were not structurally separated, and were therefore capable of being excluded by section 2(2), which applied where a material part of a house lay above or below a part of the structure not comprised in the house. Applying the words of Nourse LJ in Duke of Westminster, an overhang or undercutting was “material” where enfranchisement might prejudice the enjoyment of the house or another part of the structure. Such a prejudice would arise in the present case, as the owner of the mews building would have no remedy against the owner of the house in the event of the rear wall collapsing because of a failure to keep the basement in repair.
3. The applicant failed on the third issue, if only because he had never occupied the mews building at any material time.
Edward Cousins (instructed by Mishcon de Reya) appeared for the applicant; Judith Jackson QC (instructed by Speechly Bircham) appeared for the respondent.
Alan Cooklin, barrister
