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Court Insists Status Quo Maintained as Tenant Aims for Deeper and Down

01 August 2012

When a ground-floor tenant needs more space, it will often seek to expand sideways by obtaining space in an adjacent property.

However, when a tenant wished instead to gain more space by ‘going underground’ – by excavating the basement – the other tenants opposed the move, arguing that the proposed works were ‘outside of the demise’ of the tenant’s flat.

The High Court looked carefully at the terms of the leases, noting that the landlord retained rights over the foundations of the property and had granted specific rights over drainage and utilities passing under the property. The way common charges had been divided among the owners of the flats also indicated that the landlord had intended the size of the properties to remain unaltered.

On the basis of the examination, the Court concluded that the landlord had intended to retain a degree of control over the property. Furthermore, the proposed development could have a profound effect on the other owners. These factors led the Court to conclude that the owner of the ground-floor flat did not have the right to develop in the subsoil of the building.

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