PP 2003/5

A problem of vertical separation Q  A lessee applies under the Leasehold Reform Act 1967 to buy the freehold of what he describes as a “town house”. Architecturally, however, there is room for debate. From your summary of the House of Lords decision in Malekshad v Howard de Walden Estates Ltd [2002] UKHL 49; [2002] 50 EG 114 (CS), we gather that there will be fewer occasions where the landlord can oppose the application on the ground (afforded by section 2(2) of the 1967 Act) that a “material part lies above or below a part of the structure not comprised in the house”. Leaving aside obviously misguided claims to enfranchise maisonettes or unusually arranged flats, can you suggest some kind of preliminary test that will at least identify cases in which a section 2(2) objection can be seriously raised? A  A good start is to take the line of division and ask yourself whether the feature in contention prevents you, as a matter of everyday language, from saying that the house has been vertically divided for the purpose of the previous subsection. So you leave the plumb line in the bag and (coming to the crux of Malekshad) you pay little or no attention to the importance of any kink or dog-leg in terms of support or enjoyment of the house. Percentages are obviously relevant (see our summary), but arguments along these lines are best kept out of court. Related item: PP 2003/6