The High Court in a recent case, Gorst v Knight, decided that the demise of ground floor maisonette did not include the subsoil beneath it.
A house had been converted into two maisonettes; one on the ground floor and one on the first and second floors. The ground floor maisonette included a small cellar beneath. The owners of the maisonette obtained planning permission to make the cellar into habitable space and this would involve digging into the subsoil beneath. The freeholder opposed this plan, claiming that the subsoil was not included in the demise of the maisonette and so not owned by the maisonette owner.
The court examined previous caselaw relating to the implied inclusion of both airspace and subsoil in a leasehold demise. It was agreed that unless otherwise indicated the freehold interest in land will (based on the familiar maxim, Cuius est solum, eius est usque ad coelum et ad inferos) include everything below the surface and up to the sky. This would apply also to a lease of a whole building, vertically divided from adjoining properties. In the absence of anything indicating otherwise, it would usually be inferred that the demise includes the airspace above and subsoil below.
However, where a property is horizontally divided, the extent of the demise will depend on the interpretation of the lease as a whole. In the court’s view, subsoil will not always be treated in the same way as airspace, as it supports the building.
The description of the demise in the lease of the ground floor maisonette included all parts of the building below the midway line, including the structure. “The maisonette” was stated to include “the foundations and the void or cellar below the ground floor”. The court held that this extension of the demise implied that the subsoil was excluded. This view was helped by a reservation of the right for the landlord to pass services through conduits in or under the demised premises and a clause allowing the landlord to repair the foundations, if the tenant failed to do so.
The practical upshot of this was that the landlord had the ability to refuse to give permission for the extension. When considering carrying out work to leasehold property determining the extent of the demise and whether you have the right to do the work you intend to do is a very important first step.
Robert McDonald – Partner Conveyancing.