Tenants may have greater rights than they think.
Tenants sought to thwart a redevelopment above their garages by claiming they owned the relevant air space. Hambeldon Court in Ealing in West London was built in the 1960s.
The development comprised 12 flats with 12 garages in 2 separate blocks at the rear. Each tenant was granted a 999 year lease of a flat and garage and pays 1/12 of the running costs of the development.
In 2007, at a time when the lessees were looking to enfranchise the freehold, their landlord granted a lease of the garage roofs and airspace above to an associated company. This lease is now vested in the Claimant, H.Waites Limited, who is seeking to build an additional flat above each garage block.
The lessees, who now own the freehold, strenuously oppose the proposed redevelopment. They claim the roofs of the garages and the airspace above are within their leases and that there is a letting scheme based on only 12 flats on the development being permissible.
Each lease made very clear what was included in each flat in terms of the floors and walls and services etc and expressly excluded the roof and structure but then just referred separately to the garage being included as shown on the lease plan. All of the tenants’ obligations in each lease related to the flat and the garage without any differentiation between them.
The lease plans and the repairing obligations were unclear as to the extent of the garages that had been let and the Claimant argued that the intention must have been for the landlord to retain control of the roof and structure of both the flats and garages, particularly as the garage blocks each had a common roof made up of continuous asbestos corrugated sheeting. But the Court held that such an interpretation would involve re-writing the lease and the fact that there were no limitations in the leases as to the extent of each garage indicated there was an intention for the position to be different for the garages than for the flats.
The Court held that, on consideration of all the lease terms, the roofs of the garages were wholly within then the tenants’ leases and that the fact there was a single continuous garage roof for each block was not inconsistent with each garage tenant being liable to repair their part, rather than the landlord being responsible for the roofs under the service charge provisions.
The Court then went on to consider whether the airspace above the garages was also included in the leases? It based its decision on its construction of the leases rather than previously decided cases. It took particular note of the fact that there was no wording expressing any horizontal division and that each lease was for 999 years and therefore almost a freehold. The garages were of very simply construction and the Court thought the original parties would not have contemplated development above them and, having decided the lessees were responsible for roof repairs, the Court concluded that the airspace above, and the foundations below, were both included in the garage leases.
The Court did not consider there was any letting scheme confining the development to only 12 flats, nor that construction of the 2 flats involving supporting columns outside the garage blocks was prohibited. But, clearly, as the lessees are entitled to possession of the garage roofs and airspace above, no development by the Claimant is possible without their consent.