Trespass – Lease of flat – Works to convert building to flats resulting on creation of gap between ceiling of one flat and floor of flat above to muffle noise and inhibit spread of fire – Appellant lessee carrying out works to raise ceiling of his flat – Whether this involving trespass to respondents’ flat above – Appellant planning to re-route gas pipes and move gas meter to occupy space above original ceiling and seeking access to respondents’ flat for that purpose – Whether appellant so entitled under terms of leases relating to passage of utilities and their maintenance – Damages awarded against appellant – Appeal dismissed
The appellant and the respondents were the long lessees of two flats in a four-storey building in London W14, which dated from the mid-19th century and had been divided into four self-contained flats in the mid-1960s. The conversion works had created a division between the ceiling of each flat and the floor of the flat above it in order to muffle noise and inhibit the spread of fire. The ceiling of the appellant’s first-floor flat was attached to joists, with a gap above and then a separate set of joists that supported the floor of the respondents’ flat on the second floor. The demise under the leases expressly included “the ceilings and floor of and in the flat the joists or beams on which the said floors are laid but not the joists or beams to which the said ceilings are attached”. The easements and privileges granted under schedule 1 to the leases included the free and uninterrupted passage of utilities to the flat and a right enter on other parts of the building for the purpose of “repairing, cleansing, maintaining or renewing” any sewers, drains, watercourses, pipes, cables and wires or “laying down” new ones. However, the exceptions and reservations clause in schedule 2, setting out the corresponding rights of the landlord and the lessees of the other flats, did not mention the laying of new equipment. The leases had originally been for terms of 99 years but had been varied in the 1980s to grant 999-year terms, after a company controlled by the lessees acquired the freehold of the building.
In November 2008, the appellant commenced major building works in his flat, including the removal of internal walls and the raising of the ceiling. The works involved removing the existing ceiling and affixing a metal frame to the underside of the floor joists of the respondents’ flat, to which the new ceiling was to be attached.
In the court below, the judge allowed the respondents’ claim for damages against the appellant, holding that the works to raise the ceiling had involved a trespass on the respondent’s property as well as causing damage to that property and a nuisance by noise and dust. She awarded damages of £87,627. She dismissed the appellant’s counterclaim for an injunction to require the respondents to give access to their flat and turn off the gas supply for a short period, which the appellant sought so that he could re-route the gas pipe and move the gas meter in his flat to a position in the space above the original ceiling. The judge held that the terms of the appellant’s lease did not entitle him to move the gas meter and gas pipe to their proposed new positions or to gain access to the respondents’ flat to turn off the gas supply for that purpose. The appellant appealed.
Held: The appeal was dismissed.
(1) Although there would be no objection to the defendant re-routing the gas pipe within his own demise, the problem was that he had effectively carried out a “land grab” by raising the ceiling of his flat. The judge had correctly found that, by removing the original ceiling and constructing a new ceiling at a higher level, the appellant was trespassing on the respondents’ property. The demise under the appellant’s lease extended up to the original ceiling of the flat. The joists to which the ceiling was attached and the area above that ceiling were demised to the lessees of the second-floor flat. The gap between the original ceiling and the respondents’ floorboards served a useful purpose as a barrier to reduce noise and disturbance passing from one flat to the other. An alternative possible construction of the lease was that the gap between the ceiling joists and the joists of the floor above was retained by the freeholder. Either way, the appellant had no right under his lease to occupy that space. Since the appellant’s intention was to move the gas pipe and meter into an area outside the bounds of his flat, he had no right to enter the respondents’ flat and turn off the gas supply in order to achieve that objective.
(2) Re-routing a gas pipe so that it lay within an area outside the property demised was not an activity that fell within the privileges and easements in schedule 1 to the lease of the appellant’s flat, nor did that activity fall within the purposes encompassed by the reservations clause in schedule 2 to the respondents’ lease. There was a mismatch schedule 1 to the two leases and the exceptions and reservations in schedule 2, so far as the former, but not the latter, referred to the laying of new cables, pipes and wires. It was not appropriate to imply into the reservations clause the additional words “or laying new”, so as to entitle the appellant to enter on the respondents’ property install new equipment. If a vendor or lessor sought to reserve any rights over property of which it was disposing, it had to do so expressly. Reservations would not be implied save in exceptional situations such as necessity. Had the original lessor wished to extend the reservations clause to cover laying new and additional pipes and wires, it would, and should, have said so expressly in schedule 2. A second opportunity to do so had arisen when the leases were varied in the 1980s, at which time the lessees’ company had been the freeholder, but the reservations clause had not been amended by the deed of variation. It followed that the reservations clause permitted either the lessor or the lessees of other flats to enter the appellant’s or the respondents’ flat for one of two purposes, namely: (i) repairing, cleaning or maintaining sewers, drains, watercourses, cables, pipes and wires; or (ii) renewing such items. In that context, “renewing” pipes or wires meant substituting new pipes or wires as replacements for the pre-existing ones and did not extend to paying new and additional pipes or wires of a different character from the pre-existing ones: Lurcott v Wakeley [1911] 1 KB 905 and Trailfinders Ltd v Razuki [1988] 2 EGLR 46; [1988] 30 EG 59 applied. The proposed additional words could not be implied into the reservations clause, notwithstanding that such an addition would be sensible and desirable; it fell short of necessity since the leases functioned perfectly well without those additional words. While the mismatch between schedule 1 and schedule 2 was an oddity, it was not the function of the court to rewrite carefully drawn leases and deeds of variation merely to eliminate such oddities.
Per curiam: The present state of play was a curious one, in that the appellant had been found to be trespassing by maintaining his new ceiling at an elevated level but the judge had not ordered the reinstatement of the original ceiling. That was understandable because the costs of reinstatement would be substantial. Nor had the judge made an award of damages in lieu of an injunction. The position was simply that the appellant was de facto in occupation of an area which he was not entitled to occupy.
Amanda Eilledge (instructed by direct access) appeared for the appellant; Carl Fain (instructed by Charles Russell LLP) appeared for the respondents.
Sally Dobson, barrister
