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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Dartmouth Court Blackheath Ltd v Berisworth Ltd  EWHC 350 (Ch) (27 February 2008)
Cite as:  NPC 25,  L & TR 12,  EWHC 350 (Ch),  9 EG 200 (CS),  2 EGLR 141,  1 P & CR DG23,  2 P & CR 3
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Strand, London, WC2A 2LL
B e f o r e :
| DARTMOUTH COURT BLACKHEATH LIMITED
|- and -
Gary Lidington (instructed by Messrs Child and Child) for the Defendant
Hearing dates: 12th and 13th February 2008
Crown Copyright ©
Mr Justice Warren :
The statutory framework
"1 Qualifying tenants to have rights of first refusal on disposals by landlord
(1) A landlord shall not make a relevant disposal affecting any premises to which at the time of the disposal this Part applies unless—(a) he has in accordance with section 5 previously served a notice under that section with respect to the disposal on the qualifying tenants of the flats contained in those premises (being a notice by virtue of which rights of first refusal are conferred on those tenants); and(b) the disposal is made in accordance with the requirements of sections 6 to 10.
(2) Subject to subsections (3) and (4), this part applies to premises if—(a) they consist of the whole or part of a building; and(b) they contain two or more flats held by qualifying tenants; and(c) the number of flats held by such tenants exceeds 50 per cent of the total number of flats contained in the premises.
(3) This Part does not apply to premises falling within subsection (2) if—(a) any part or parts of the premises is or are occupied or intended to be occupied otherwise than for residential purposes; and(b) the internal floor area of that part or those parts (taken together) exceeds 50 per cent of the internal floor area of the premises (taken as a whole);
and for the purposes of this subsection the internal floor area of any common parts shall be disregarded.
(5) The Secretary of State may by order substitute for the percentage for the time being specified in subsection (3)(b) such other percentage as is specified in the order."
Since it is the position of the Landlord and Berisworth that the two disposals which I have mentioned are not caught by section 1, paragraphs (a) and (b) of section 1(1) have not been complied with. It is common ground that the Landlord is a landlord within the definition found in section 2 and that the tenants of the Main Building are all qualifying tenants within the definition found in section 3 (so that the 50 per cent qualifying level under section 1(2)(c) is met).
"4 Relevant disposals
(1) In this Part references to a relevant disposal affecting any premises to which this Part applies are references to the disposal by the landlord of any estate or interest (whether legal or equitable) in any such premises, including the disposal of any such estate or interest in any common parts of any such premises but excluding -(a) the grant of any tenancy under which the demised premises consist of a single flat (whether with or without any appurtenant premises); and(b) any of the disposals falling within subsection (2).
(4) In this section "appurtenant premises", in relation to any flat, means any yard, garden, outhouse or appurtenance (not being a common part of the building containing the flat) which belongs to, or is usually enjoyed with, the flat."
It is common ground that none of the exclusions found in section 4(2) applies in the present case but I would nonetheless mention that one exclusion is the disposal of any incorporeal hereditament (suggesting that, absent the exclusion, such a disposal would fall within Part I).
"in relation to any building or part of building, includes the structure and exterior of that building or part and any common facilities within it".
The leases of the flats and garages
"the freehold land comprised in [the title number] upon which are situate the block of Flats with appurtenances thereto known as Dartmouth Court. Dartmouth Grove aforesaid (hereinafter called "the Building")."
1. A right of way over and along the main pathways included in the title leading to and the main entrance of the Building and the passages landing and staircase leading to the Flat.
2. A right of subjacent and lateral support and to shelter and protection from other parts of the Building and from the site and roof thereof.
3. An easement for water, soil, gas and electricity over relevant conduits then or at any time in under or passing through the Building.
4. The right in common with the Lessor and the other Lessees in the Building to use any communal gardens and the pathways leading thereto whilst the same shall remain as such.
"ALL THAT Garage Numbered [ ] situate within the curtilage of the Building shown on the plan……"
The word "curtilage" is therefore being used in a sense which clearly includes the site of the garage leased. The demise is for a term of 125 years at a premium (£500 in 1979 for the lease I have seen) and a modest annual rent starting at £5 and rising to £20 in 2077. The lease is a repairing lease with the tenant being obliged to keep the demised premises in substantial repair. The lease contains an absolute covenant against assignment or subletting of part and an absolute covenant against subletting the whole. There is also a qualified covenant against assignment of the whole, assignment to the tenant of a Flat in the Building being permitted. The landlord covenants to insure against certain risks (fire, storm, tempest, aircraft and explosion). The cost of such insurance is recovered by the lessor as an additional rent.
The Disposals: the Transfer and the Lease
"Garage Numbers 1, 6 & 10 together with the equipment room, caretakers office and the electricity sub-station at Dartmouth Court.."
together with certain easements and appurtenant rights.
"(1) the space above the roof together with the fittings screwed or fixed thereto or to the roof or other roof structures ("the roof") [I interpose here to remark that the Lease itself refers in its body to the Roof with an upper-case 'R': This is clearly a reference to the roof as just defined.]
(2) The lightwell shown hatched black on the plan annexed hereto which for this purpose shall include the lightwell through the whole height of the building including the space above and the earth beneath ("the Lightwell") [This is the Lightwell as I have already defined it.]
(3) The basement room or rooms shown edged red on the said plan ("the Basement Rooms").
(4) The rear garden shown hatched black on the plan within the red boundary."
(a) "Building" means "Dartmouth Court and curtilage being [title number]"
(b) "Dartmouth Court" means "the block of flats and building known as Dartmouth Court constructed and forming part of the Building
(c) "Curtilage" means "the curtilage of Dartmouth Court forming the land surrounding the same and forming part of the Building.
(a) "the Included Rights" means the easement rights and privileges specified in the Second Schedule
(b) "the Common Parts" means entrance passages etc "and other areas" provided for the common use of residents and occupants including "the driveways paths gardens and all areas forming part of the Curtilate [sic but clearly meaning Curtilage] including access to the garages.
"but for the avoidance of doubt not the Roof itself or mansard roof or anything below it or them or any structure now erected thereon or the parapet walls thereof or any fixture tank of [sic] equipment fixed to or above the Roof or any fixture pipework tank work pipe cabling or equipment of any nature whatsoever housed therein or thereon or fixed to or above the Roof…."
"All the space above the roof including the space from roof level occupied by the mansard roof and above together with any fixtures and fitting in or around the roof which shall form part of any structure placed hereafter on the roof"
(a) The right to install a lift in the Lightwell or on the exterior of Dartmouth Court or some other convenient place.
The law – the relevant premises
The law – the building
"In the present case, it would be to attribute to Parliament an entirely capricious intention if we were to hold that the tenants' right to purchase did not extend to the gardens and other appurtenances which are expressly or impliedly included in the demises of the flats to the tenants. In my judgment, we are not forced to adopt such an unreasonable construction since it is a perfectly legitimate meaning of the word "building" that it includes the appurtenances of the building.
I therefore reach the conclusion that the purchase notice under section 12 could have required the landlords to transfer not only the two buildings but also any appurtenances to those buildings.
What then are the appurtenances of the buildings? There can be no doubt that the gardens are included: they are expressly included in the leases of the flats which are part of the buildings. In my judgment the garages are not appurtenances. The tenants enjoy no rights over the garages under or by virtue of their leases of the flats. The garages are held under quite separate leases; not every flat holder has a garage; the freehold of all the garages is not vested in the landlords. In those circumstances is impossible to hold that the garages are appurtenant to the buildings. Similarly, the tenants of the building enjoy no rights over the unused land, nor is such land used in conjunction with the flats; therefore it is not an appurtenance of the building. As to the roadway and paths over which the tenants have either express or prescriptive rights of way, in my judgment they are appurtenances of the building……."
What is comprised in the building on the facts of this case?