Rosebery Ltd v Rocklee Ltd & Anor [2011] EWHC B1 (Ch) (20 January 2011)

Rosebery Ltd v Rocklee Ltd & Anor [2011] EWHC B1 (Ch) (20 January 2011)

The supplemental flat 15 underlease did not demise to Rosebery the airspace above the extension, but did demise the extension itself, including its roof, to Rosebery. The demise did not extend vertically beyond the height of flat 15. The natural inference, where an extension is built by a lessee within the demised space, is that the whole of it is included in the demise unless otherwise stated. The evidence and lease terms did not support a demise of the airspace above the roof.

Citation
[2011] EWHC B1 (Ch)
Parties
Claimant: Rosebery Limited; 1st Defendant and Part 20 Defendant: Rocklee Limited; 2nd Defendant and Part 20 Claimant: Eaglestone Investments Corporation
Jurisdiction
England and Wales
Judgment Date
20 January 2011
Procedural Posture
Chancery Division Civil Claim With Part 20 Proceedings / Judgment After Trial
Outcome
Declaration granted in part for Rosebery; extension and its roof demised to Rosebery, but not the airspace above the roof.
Legal Topics
Construction of Leases, Extent of Demise, Airspace Rights, Roof Ownership, Supplemental Underlease, Contractual Interpretation
Property Law Landlord and Tenant Construction of Leases Extent of Demise Airspace Rights Roof Ownership Supplemental Underlease Contractual Interpretation

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Parties

Rosebery Limited

Claimant

Rocklee Limited

1st Defendant and Part 20 Defendant

Eaglestone Investments Corporation

2nd Defendant and Part 20 Claimant

Procedural Posture

Chancery Division Civil Claim With Part 20 Proceedings / Judgment After Trial

Legal Issues

  1. 1 Whether the supplemental flat 15 underlease demised to Rosebery the airspace above the extension as well as the roof itself
  2. 2 Whether the roof of the extension built by Rosebery forms part of the demise under the supplemental flat 15 underlease

Ratio Decidendi

The supplemental flat 15 underlease did not demise to Rosebery the airspace above the extension, but did demise the extension itself, including its roof, to Rosebery. The demise did not extend vertically beyond the height of flat 15. The natural inference, where an extension is built by a lessee within the demised space, is that the whole of it is included in the demise unless otherwise stated. The evidence and lease terms did not support a demise of the airspace above the roof.

Court Disposition

Declaration granted in part for Rosebery; extension and its roof demised to Rosebery, but not the airspace above the roof.

Orders

  • Declaration that the extension, including its roof but not any airspace above it, was demised to Rosebery by the supplemental flat 15 underlease.
  • Further argument to be heard if parties cannot agree on the consequences in the Part 20 proceedings.