by Stephen Bickford-Smith
Many buildings, residential and commercial, are divided horizontally and/or vertically into separate units occupied by tenants. Not uncommonly, the leases fail to spell out in detail the precise extent of the premises demised to each tenant and this can cause practical difficulties.
This article examines the rules governing the extent of the premises included by implication in leases of parts of buildings divided horizontally and vertically, with recent developments of the law in these areas, and makes some suggestions which may help those drafting leases.
The failure to spell out the precise extent of demised premises leads to difficulties in a number of contexts:
(a) Determining the extent of landlord’s and tenant’s repairing obligations.
(b) Ascertaining whether landlord or tenant is entitled to roof space and/or airspace above the demised premises.
(c) Ascertaining whether proposed alterations by the tenant to the demised premises would involve an encroachment on to the landlord’s retained property or indeed to the property of another tenant. This may be important not only for the law of trespass but also for the purposes of determining whether an alteration proposed by the tenant would fall within section 19(2) of the Landlord and Tenant Act 1927.
Roofs and airspace — the general rule
It is trite law that the freeholder owns the airspace above his property and that any incursion into this airspace is a trespass: Kelsen v Imperial Tobacco Co [7] 2 QB 334. Decided cases demonstrate at least two limits to this principle: first, a temporary and transient trespass which does not interfere with the enjoyment of the land beneath the airspace may possibly not constitute trespass: Pickering v Rudd (1815) 4 Camp 219 and Clifton v Viscount Bury (1887) 4 TLR 8 in both of which cases it was said that the firing of a bullet across land but not striking its surface would not constitute trespass. Second, in Lord Bernstein v Skyviews & General Ltd [1978] QB 479 it was held that the landowner’s rights in his airspace extended only to such height as necessary for the ordinary use and enjoyment of his land and the structures upon it. The case concerned overflying for the purpose of aerial photography.
However, the invasion of airspace by a structure, whether fixed or movable, will constitute a trespass. Examples of the former are Kelsen’s case (above), where the incursion was by an advertisement hoarding attached to a wall on neighbouring land, and Wandsworth Board of Works v United Telephone Co Ltd (1884) 13 QBD 904, where the trespass was by a telephone line. Examples of the latter are Woollerton & Wilson Ltd v Richard Costain Ltd [0] 1 WLR 411 and Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2 EGLR 173, both of which concern incursions by the jibs of cranes being used to carry out construction work on neighbouring land.
Where the freeholder of land lets it, the right to possession of the land and the airspace above it passes to the tenant. Consequently, any trespass into the airspace is actionable by the tenant. Thus in Straudley Investments Ltd v Barpress Ltd [7] 1 EGLR 69 tenants of a number of houses in Mortimer Street, London W1, were held entitled to an injunction requiring the removal of a fire escape across part of the roof and a ventilation duct erected on and against the roof.
Rules in relation to buildings let in parts
Where a building is occupied by a number of tenants, it is a question of interpretation of the individual leases to establish precisely the extent of the premises included in each lease. Clearly no tenant has any right in airspace unless the property let to him includes some portion of the external roof.
1. Vertical divisions
Where a building is divided vertically, in the absence of any specific provisions in the relevant leases the tenancies of individual parts will include that portion of the roof of the building above the relevant parts. So in Tennant Radiant Heat Ltd v Warrington Development Corporation [8] 1 EGLR 41 the plaintiffs had been let by the defendants a unit forming part of a large building which had been subdivided vertically into 22 units. The entire building was roofed by a single continuous deck. It was held that the roof above the plaintiffs’ unit was included in the demise to the plaintiffs.
This rule does not apply, of course, where the lease properly interpreted excepts the roof from the demised premises or where circumstances existing at the grant of the lease show that the roof was not included in the demise.
2. Horizontal divisions
However, where the building is a multi-storey building, divided horizontally with separate floors let to different tenants, the general rule does not apply. In such cases, again in the absence of specific terms in the lease regulating the matter, or external circumstances pointing to a different conclusion, the horizontal boundaries of each tenant’s demised premises are marked by the ceiling and floor of the premises demised. And the tenant of the top floor will not by implication have included in his premises anything above the ceiling, such as the roof space, the roof or the airspace above the roof. This rule is clearly established in the case of flats: Cockburn v Smith [4] 2 KB 119 and Douglas-Scott v Scorgie [1984] 1 WLR 716; [1984] EGD 325. The same rule also applies to office premises: Rapid Results College Ltd v Angell [1986] 1 EGLR 53.
In some cases an intermediate position may arise, where one lease demises premises consisting of an entire building, but where the building in question has a flat roof, of which the landlord or persons authorised by him claim to have retained occupation. In Martyr v Lawrence (1864) 46 ER 375 it was held on the facts that the demised premises included the roof, notwithstanding that under a previous tenancy to which the existing tenancy agreement referred the landlord had retained the roof. In Martin’s Camera Corner Pty v Hotel Mayfair Ltd [6] 2 NS WLR 15 it was held on the facts that the landlord had retained occupation of the relevant roof, which was thus not included in the demise.
In Davies v Yadegar [9] EGCS 68 (Court of Appeal, May 3 1989) the top-floor flat in a two-storey house which had been converted into two flats “and the roof and roof space thereover” had been demised to the plaintiff on a long lease. The plaintiff wished to extend her flat into the roof space and to provide dormer windows which would extend beyond the outline of the existing roof. It was held that she was entitled to do so, as the demise to her included the airspace above the roof having regard to the wording of the lease. The rule in Cockburn v Smith (above) had been displaced by that wording. A similar point arose in Haines v Florensa [1989] EGCS 86.
3. Ceiling and floor voids
Where the demised premises contain suspended ceilings, creating a void between the “structural” ceiling and the visible ceiling, it is not entirely clear whether the void is included in the demised premises. In Graystone Property Investments Ltd v Margulies (1983) 47 P&CR 472; [4] EGD 267 it was held that the void was included in the demised premises. The Court of Appeal in reaching its decision attached weight first to the evident improbability that the landlord would have wished to retain the voids, to which it had no access, and to the fact that some rooms in the flat in question retained their full height. Whether the same conclusion would be reached in the case of office premises in a building containing suspended ceilings and/or floors of a uniform height above and below which services were concealed remains unclear. There could well be sound practical reasons for the landlord’s wishing to retain these parts in its ownership, for the purpose of safeguarding the provision of services to other parts of the building and upgrading and altering services where needed. These considerations would derive particular force if specific rights of access for maintenance work to the voids were reserved by the lease.
4. Vertical walls
In the case of vertical walls, the tenant of each floor acquires the full thickness and external face of that portion of the vertical external wall of the property bounding his premises: Sturge v Hackett [2] 1 WLR 1257. This rule does not, however, assist in relation to the ownership of airspace: the ownership of airspace is determined vertically, by reference to whose land lies beneath the air in question, and not horizontally. In the Margulies case, at first instance the judge relied on the rule in Sturge v Hackett in deciding that the tenant also acquired the airspace above a certain flat roof over part of the flat, although this does not appear in the report of the case at 133 New Law Journal 894. This reasoning appears incorrect. Nevertheless, the question remains unresolved whether the rule in Cockburn v Smith (above) applies where part of the flat has its own roof, distinct from the main roof for building: for example, a rear bathroom on the top floor of the building. Probably no general rule can be laid down, and the question would have to be resolved by interpreting the lease as a whole.
Repairs
Ownership of the roof of a multiple-occupied building is relevant not only to rights in the airspace above it but also to repairing liabilities under the lease and to recovery of service charges. Where ownership of the relevant part of the roof is vested in the tenant, he will usually be under a repairing obligation having regard to the almost universal practice of FRI leases in business and industrial premises. However, the landlord may still be liable for nuisance or negligence if he fails to repair or maintain parts of the roof that he retains under his own control: Tennant Radiant Heat Ltd v Warrington Development Corporation (above). Where the landlord retains ownership of the roof, in the case of non-residential premises, even if he is not expressly liable to repair it by covenant, he may be liable to the tenant for negligence and nuisance: Cockburn v Smith (above) and Martin’s Camera Corner Pty v Hotel Mayfair Ltd (above). In the case of residential premises, the landlord may be liable under covenants implied by statute, especially the Landlord and Tenant Act 1985, sections 11 to 14.
Tenant’s rights to carry out alterations and improvements
Leases for parts of multiple-occupied buildings virtually invariably prohibit the carrying out of alterations without the consent of the landlord. By section 19(2) of the Landlord and Tenant Act 1927, such consent cannot be unreasonably withheld in the case of an alteration which constitutes an improvement from the tenant’s point of view: F W Woolworth & Co v Lambert [7] Ch 37.
In Tideway Investment & Property Holdings Ltd v Wellwood [2] Ch 791 it was held that an alteration could not be an “improvement” within section 19(2) if it involved a trespass on the landlord’s premises, in that case by the fixing of gas-heater flues to the underside of balconies giving access to flats demised to individual tenants. In Davies v Yadegar (above) one member of the Court of Appeal expressed doubt about the correctness of this view. In Haines v Florensa (above) the Court of Appeal declined to deal with the point, as it had been neither pleaded nor raised in the court below, that the proposed works contitute a trespass.
Certainly, in an age of increased multiple occupation there is a strong case for the courts being more ready to modify strict property rights to achieve a workable balance between the various occupants of a building and the landlord. Some signs of such approach may be found in cases such as Wong v Beaumont Property Trust Ltd [5] 1 QB 173 and Pole Properties v Feinberg (1981) 43 P&CR 121; [1981] EGD 396. It is unfortunate that the provisions of the Landlord and Tenant Acts 1985 and 1987 relating to residential service charges have created a legalistic nightmare and serious difficulties of residential management which are likely in the long term to have serious consequences for the structure of many blocks of flats.
Drafting
A full account of the rules applied by the courts to the interpretation of leases and conveyances to ascertain the extent of the property demised or conveyed is beyond the scope of this article. Some cases are not easy to reconcile. The following points should be borne in mind.
(a) Where the description of the property is clear, the court cannot look at a plan incorporated for the purpose of identification only to derogate from the clear description: Hatfield v Moss [8] 2 EGLR 58.
(b) The document must be construed in the light of the physical circumstances existing at the date it was made.
The following suggestions may be helpful for those involved in the preparation of leases for multiple-occupied buildings.
(1) Where the premises are constructed with suspended ceilings and/or raised floors, consider specially whether the voids should be included in the demise or not. The landlord should reserve appropriate rights of access to such voids in any event, in so far as they relate to or provide services to other parts of the building.
(2) Where the building is divided vertically, define whether the roof over the demised premises is to be included in the demise or not. It may be convenient notionally to split the roof horizontally, so that the external covering and the main structural members are vested in the landlord, with the area below and the finishes demised to the tenant, for example.
(3) Bear in mind the rule that a tenant of part of a building will get the external wall bounding his demise unless specific provision is made otherwise. This has implications for external finishes, the display of signs etc.
(4) When demising a top-floor flat, consider specifically whether it is intended to demise the roof and/or roof space to the tenant. If the roof is demised, the tenant will in the absence of contrary stipulation acquire the airspace above the roof. This may prevent the landlord from being able to object to the tenant’s adding another floor, and deprive the landlord of the right to sell the airspace for the construction of, for example, a penthouse.
(5) Ensure if at all possible that the area comprised in each demise is defined precisely by plans and drawings both vertically and horizontally. Such plans should be to as large a scale as possible and drawn with professional help. Care should be taken to ensure that the verbal description of the premises accords with the plan, and if it is intended that the plan should be pre-dominant, then the lease should specifically say so and not incorporate the plan for the purpose of identification only.
