Landlord and tenant — Extent of property demised by long lease of a building — Appeal from decision of Mervyn Davies J refusing appellants’ claim to mandatory injunctions under Ord 14 requiring respondents to remove a fire escape and ventilation vent erected by them on and against the roof of appellants’ property and constituting a trespass thereto — Respondents’ defence was that the upper surface of the roof, airspace above and external surface of the wall were not part of the premises demised to the appellants — Mervyn Davies J, although accepting that there was a very strong case for a summary judgment in favour of appellants, considered that the respondents should be given leave to defend — He was influenced by dicta in Cockburn v Smith and Douglas-Scott v Scorgie, which left a doubt in his mind as to whether the matter should be concluded summarily against the respondents — The appellants’ lease was for 99 years from 1936 and the parcels clause demised ‘all that piece or parcel of ground with the messuages and buildings erected thereon’ comprising numbers 67 to 81 (odd) in Mortimer Street, London W1 — The lease was a full repairing lease and the repairing covenant required the lessee to ‘repair support and uphold the said messuages buildings and premises’ and to keep the premises in repair ‘with all additional erections and improvements’ — Held by the Court of Appeal that it was really unarguable that the lease did not demise to the appellants the roof of the buildings and the exterior walls, which were the subjects of the trespass — The cases of Cockburn v Smith and Douglas-Scott v Scorgie were distinguishable and did not justify the doubt felt by the judge — Appeal allowed and appropriate relief under Ord 14 granted to the appellants
The following
cases are referred to in this report.
Cockburn v Smith [1924] 2 KB 119
Douglas-Scott v Scorgie [1984] 1 WLR 716; [1984] 1 All ER 1086; (1984) 48
P&CR 109; [1984] EGD 325; (1984) 269 EG 1164, [1984] 1 EGLR 40, CA
This was an
appeal by the plaintiffs, Straudley Investments Ltd, from the decision of
Mervyn Davies J, refusing to grant summary relief under Ord 14 against the
defendants, the present respondents, Barpress Ltd, requiring them to remove a
fire escape and ventilation vent, the erection of which was claimed by the
appellants to be a trespass on their property. Paul de la Piquerie (instructed
by Binks Stern & Partners) appeared on behalf of the appellants; P J Susman
(instructed by Elkan David & Co) represented the respondents.
Giving
judgment, O’CONNOR LJ said: This is the plaintiffs’ appeal from a refusal of
Mervyn Davies J to grant relief under Ord 14 and order mandatory injunctions
against the defendants to remove a fire escape and a ventilation vent which
they had erected on and against the roof of the plaintiffs’ property. The
statement of claim was in the writ issued on February 13 and it alleged that in
December 1985 the defendants had put up the fire escape across a part of the
roof of the plaintiffs’ property in Mortimer Street, London W1, and, as I have
said, put up a ventilation duct which had impinged in part on to the
plaintiffs’ property.
By para 5 of
their defence the defendants, who had admitted that the fire escape and the
extractor duct were erected without any leave or licence of the plaintiffs,
said:
It is denied
that the erection of the said fire escape or of the said air extractor duct or
the fact of the same remaining in position constituted or constitutes a
trespass by the Defendants or either of them on the said premises so demised,
in that it is denied that the upper surface of the said roof or the air space
above the same or the external surface of the said wall were or are part of the
said premises so demised.
The
plaintiffs, in their affidavit in support of their summons for mandatory
relief, exhibited the lease under which they held the premises. It is a lease
made in 1936 for 99 years and is a full repairing lease. The parcels clause, so
far as material, demises:
ALL THAT
piece or parcel of ground with the messuages and buildings erected thereon
situate and being on the South side of and Numbered 67, 69, 71, 73, 75, 77, 79
and 81 in Mortimer Street.
There is a full
repairing covenant in clause II(2) requiring the lessee to ‘repair support and
uphold the said messuages buildings and premises with all pavements sinks
sewers’ etc. Later in that clause it says: ‘And the said premises so repaired
and kept with all additional erections and improvements together with all
windows shutters leaden gutters ridges and hips leaden and other pipes’ etc and
a whole stack of things are to be kept in repair.
In my
judgment, it is quite unarguable that that lease does not demise the roof of
the buildings and the exterior walls. The learned judge came to a conclusion
that it was in some fashion arguable. He said in the note of his judgment:
[There is a
very] strong case for Order 14 judgment in this case, but after some hesitation
I do not accede to [the] request.
There should
be leave to the defendant to defend. I am led to this conclusion by the
references to dicta in Cockburn v Smith [1924] 2 KB 119 and Douglas-Scott
v Scorgie [1984] 1 WLR 716 which suggest that, although it is unlikely,
consideration of the physical circumstances of the buildings and of the terms
of the demise might lead to the conclusion that the roof never was demised to
the plaintiffs. It is unlikely but there is a doubt in my mind planted there by
Mr Susman’s submission.
I feel uneasy
concluding this matter once and for all by a mandatory injunction.
Mr Susman’s
submission was that in certain circumstances it may be that the roof does not
pass with a demise. Of the two cases cited and referred to by the learned
judge, Cockburn v Smith in 1924 was a claim by a tenant of a
top-floor flat against the landlords for personal injuries and ill health
suffered by her as a result of non-repair of the roof, which had let in water.
An argument was put up that the roof had passed to her and it was her roof. The
Court of Appeal held that the judge who had come to that conclusion was wrong
and stated in terms that it was a question of construction of the individual
leases as to whether the roof passed or not and that, on the terms of the lease
in that case, it was quite clear that the roof did not pass to the tenant.
The other case,
Douglas-Scott v Scorgie, was a landlord and tenant case which
really turned on the true construction of section 32(1)(a) of the Housing Act
1961, which implies a term into certain classes of letting that there shall be
implied a covenant by the lessor to keep in repair the structure and exterior
of the dwelling-house. That again was a question as to whether the roof of the
flat formed part of the structure or exterior of the tenant’s dwelling-house.
In that case Cockburn v Smith was cited and it was conceded that
the roof was not demised.
For my part I
get no help whatsoever from those two cases in construing the lease in the
present case. In my judgment its terms are crystal clear. It is quite apparent
and certain that the roof did pass under the demise and there is no defence to
this action. It has not been suggested by Mr Susman that the second ground
given by the learned judge was a proper ground to take into account in giving
time, namely that the defendants were negotiating with others to provide an
alternative fire escape from their premises, and can have any effect on this
case. It is not suggested that that creates any defence to the claim.
In my judgment
the learned judge fell into error and I would hold that the plaintiffs are
entitled to relief in the terms of paras 1, 2 and 3 of the prayer in their
statement of claim and an order that the damages should be assessed.
Agreeing,
NICHOLLS LJ said: I add only a few words because we are differing from the
learned judge. The short question raised by this appeal is one of the
construction of the words governing the extent of the property demised by the
lease granted on January 6 1936. The lease is a 99-year full repairing lease.
The parcels clause is in these terms:
ALL THAT
piece or parcel of ground with the messuages and buildings erected thereon
situate and being on the South side of and Numbered 67, 69, 71, 73, 75, 77, 79
and 81 in Mortimer Street in the Parish of St Marylebone in the County of
London which said premises with the dimensions and abuttals thereof are more
particularly delineated and described in the plan drawn hereon TOGETHER with
all yards areas vaults ways lights easements watercourses and appurtenances to
the said premises belonging
with an
immaterial exception.
The factual
position now (it is not suggested that there was any material difference in
1936 when the lease was granted) is that the building or buildings 67 to 81
Mortimer Street form part of a terraced block. On those simple facts, for my
part I can see no escape from the conclusion that the demise was of the whole
of the building or buildings 67 to 81 Mortimer Street shown on the plan
including, as part of that building or those buildings, the roof of the
relevant two-storey area and the roof of the rest of the building or buildings
and, in the normal way, the air space above those roofs. If that construction
were not correct, one of the conclusions which would inevitably follow in this
case is that the lessee’s repairing obligations would not extend to the roof of
the building or buildings. Plainly that could not have been intended in the
case of this lease. I add that this lease, being a long lease of a whole
building or whole buildings, is quite different from a lease or tenancy of a
top-floor flat of a building which has been divided horizontally into flats.
I agree that
this appeal should be allowed.
The appeal
was allowed with costs and mandatory injunctions granted, not to be enforced
for six weeks; damages to be assessed.