Home Page > Property Law Library > Landlord and tenant (general) > Extent of the demise

Home Page
Contact
Editorial Team

Assignment
Break clauses
Chattels and fixtures
Consents
Construction of lease terms
Dilapidations
Disclaimer
Extent of the demise
Forfeiture
Goods left on the premises
Insolvency
L & T (Covenants) Act 1995
Licences
Merger
Nuisance
Notices - service
Penalty clauses
Rent
Rent review
Restraint of trade
Service charges and insurance (general)
Set-off
Subletting, sharing possession or occupation
Surrender by operation of law
Tenancy at will
Uncertain term
Unlawful eviction

Current page






Extent of the demise


Airspace and subsoil

Maisonette

Gorst v Knight
[2018] EWHC 613 (Ch)

Summary

The presumption in favour of the demise of the airspace above a property did not automatically apply to the subterranean space beneath it. On its proper construction, the long lease of a flat did not demise the subsoil to the tenants.

Facts

The tenants' property comprised the ground floor and cellar of a house which they held under a long lease. The defendant landlord was the freehold owner of the whole building. The tenants wished to make the cellar into a habitable room or rooms. Since it was only five feet high, it needed more height which could only be obtained by digging down into the subsoil by another four feet. They obtained planning permission from the local planning authority, but the landlord opposed the plan and sought a declaration that the lease of the maisonette did not demise the subsoil under the cellar. At first instance, the Master granted the declaration.

Decision

The decision was upheld on appeal.

The general principle was that a conveyance of land included the surface and everything below it, unless there were exceptions from the grant. Accordingly, in 1992 the subsoil under the house was available to the freeholder to be the subject of a demise. The question then was whether the subsoil was so demised.

There was a presumption in favour of the demise of airspace above a property, but different considerations arose in respect of the demise of subsoil below a house. Chief among them was the fact that the subsoil was key to the stability of the whole building; if the foundations became unstable, the whole building was threatened, unlike the roof.

Secondly, access to the subsoil was more difficult, and would generally involve going through the lowest demise in the building. Thirdly, the subsoil was not visible and open to the elements, as the roof was so a problem with it would not be so easily noticed at an early stage. Those factors meant that the authorities concerning demise of airspace could not be applied to the subsoil without further consideration.

The express words of demise in the lease extended to the maisonette on the ground floor of the building, including all parts of the building. Those words did not include the subsoil, because the subsoil was not part of the building. The lease reserved to the landlord, the right to services through conduits in or under the demised premises. The word ”under" had to mean that there was a lower limit to the demised premises.

Citation

HHJ Paul Matthews:
    “it may well be a reasonable use of natural resources to seek to create extra living space by digging down only a few feet, so improving the accommodation which already exists. But this can only take place within the context of the legal rights which have been deliberately created by the parties or their predecessors in title. The mission – or a part of the mission – of property law is the allocation and management of resources, which requires (amongst other things) stability. Hence what governs is not what is reasonable in the circumstances. Instead, it is (within public policy limits) what is stipulated. The economics, however reasonable, do not control the law.”

Back to top

If you would like to subscribe to the full monthly update please click below.

Options
Monthly Updates From £207 + VAT (1 year)
(Free for charities and students)