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The subsoil beneath…

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In the recent case of Gorst & Anor v Knight [2018] EWHC 613 (Ch) the High Court held that the demise of a lower maisonette did not include the subsoil beneath it.

The leasehold owners of the lower maisonette wished to develop the basement by extending downwards and applied to the landlord for consent to the proposed works. The landlord argued that the subsoil was excluded from the demise and it was therefore not under a duty to consider the leaseholders’ application, nor grant consent.

The High Court accepted there is a presumption that a freehold interest in land, unless otherwise indicated, includes the airspace above and the subsoil below. However, it said no such presumption applies to leasehold land which is divided horizontally, so that whether it includes the airspace or subsoil will depend on a careful interpretation of the lease, particularly the description of the relevant demise. It said that, as the subsoil is key to the stability of the whole building, the question of whether a demise includes the subsoil is to be distinguished from the question of whether it includes the airspace.

The High Court considered previous cases that have looked at the construction of contracts and said that when interpreting a lease, the court must ascertain the objective meaning of the language used. In doing so, it must consider the lease as a whole and may also take into account the factual background known to the parties at or before the date of the lease.

The description of the lower maisonette expressly included the cellar and foundations. The court said this specific wording implied the subsoil was excluded from the demise. It said this was further supported by a reservation in the lease to the landlord to enter upon the land to repair the foundations should the tenant fail to do so and also to pass services through conduits “under” the demised premises. The court said these provisions of the lease also indicated a lower limit to the demise and that, consequently, the subsoil was not included in it.

The judgment contains a useful summary of how the courts will approach interpreting a lease, particularly when determining whether the demise includes the subsoil. If a tenant intends to develop a property in such a way, it should carefully review the lease to ensure it will not be restricted from doing so.

http://www.bailii.org/ew/cases/EWHC/Ch/2018/613.html

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Lauren McQue

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