Jason Victor Lejonvarn and Another v Cromwell Mansions Management Company Ltd
| Jurisdiction | England & Wales |
| Judge | The Deputy Judge |
| Judgment Date | 24 November 2011 |
| Neutral Citation | [2011] EWHC 3838 (Ch) |
| Date | 24 November 2011 |
| Court | Chancery Division |
| Docket Number | Case No. HC11C00079 |
[2011] EWHC 3838 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
London EC4A 1NL
Mr. J. Jarvis QC
(Sitting as a Deputy Judge of the High Court)
Case No. HC11C00079
Mr. A. Tanney (instructed by Summers Solicitors LLP) appeared on behalf of the Claimants
Mr. D. Holland QC (instructed by Bevan Kidwell LLP) appeared on behalf of the Defendant.
Introduction:
This is the trial of a Part 8 claim in which the claimants, Jason Victor Lejonvarn and Basia Sarola Paczynski-Lejonvarn, seek declarations that the premises which were demised to them under a lease dated 17 th July at 65 Cromwell Avenue, London N6, included the sub-soil beneath the basement and garden of the Flat as defined and, second, that the defendant, Cromwell Mansions Management Company Limited, which is the freehold owner of the demised premises, has unreasonably refused its consent to works to the demised premises.
At the beginning of this trial this morning the parties accepted that as there was only one day allocated to the trial of this matter, I should decide at least the first issue. Since it is now four o'clock and I am in the course of giving judgment, that was a very sensible thing to have agreed.
The claimants are the tenants under a lease for 999. years of the ground floor flat, number 1, at 65 Cromwell Avenue (the 'Property'). They wish to carry out substantial development works which would involve excavating below the ground of the present floor of the flat. The leasehold owners of the two flats above, namely Miss Goddard, who owns the first floor flat, and Mr. Forsyth who owns the second floor flat, have taken exception to this development. The claimants, together with Miss Goddard and Mr. Forsyth, are the three directors of the defendant company. They have, therefore, a majority on the board of the defendant company and have opposed the proposed development.
The claimant sought a licence to carry out the development pursuant to clause 2(30) of the lease, and by a letter dated 6 th December 2010 the solicitors acting for the defendant stated that the issue of the defendant's consent did not arise because the proposed works did not comprise the demise of the premises in the flat owned by the claimant's.
The issue which has been tried before me is whether the demise of Flat 1 to the claimants included a demise of the sub-soil. The claimants hold the leasehold interest in the property under a lease dated 17 th July 1975. The demise of the property is contained in clause 1:
"The Lessor hereby demises unto the tenant all that the Ground Floor and Basement and Cellar Flat (hereafter called the 'Flat') numbered 1 and being on the Ground Floor and Basement and Cellar of the Building and including one half part in depth of the structure between the ceilings of the Flat and floors of the Flat above it, and the internal and external walls of the Flat up to the same level, together with the land being the garden as is shown coloured pink on a plan hereto annexed, together with the easements, rights and privileges mentioned in the First Schedule hereto …"
The case presented on behalf of the claimants by Mr. Anthony Tanney, counsel for the claimants, is that construed in the relevant context the words of the demise operate as a demise of the whole of the property below the horizontal plane located half way between the ceilings of the flat and floors of the flat above, including the sub-soil beneath the flat and garden. Second, Mr. Tanney argues that if I construe the demise in such a way that it does not include the sub-soil beneath the flat and the garden, there is nevertheless a legal presumption that the sub-soil is to be included in the lease. I shall consider each of these arguments in turn.
Construction:
There is no issue between the parties as to the proper approach to construction. As Lord Clarke observed in Beresford v. Maxfield Housing Co-Operative Limited [2011] UKSC 52, there is no difference between interpreting a lease and the interpretation of any written contact. The precise rights and obligations of the parties under it must depend on the terms which the parties have agreed and the circumstances in which they were agreed. The parties accept, therefore, that it would be right to take into account the surrounding circumstances when the contract was made and to look at the commercial efficacy of the arrangements as part of the basis of construction. It is also accepted that in so far as is necessary to imply any terms into this lease, the process of implication is part of a continuum in the analysis of construction.
Despite the warning of Lord Hoffmann that one must not get involved in semantic construction of documents, nevertheless, understandably, counsel on both sides took me to a detailed analysis of the various terms in the lease and provided different explanations for them.
It seems to me that the wording used in clause 1 is of crucial importance. I bear in mind that this is a document that was prepared by lawyers and that the words will therefore have been carefully chosen. It is significant to me that the words that were used in clause 1 for the definition of the "Flat" were "the ground floor and basement and cellar flat". One starts with what must be, on this analysis, rooms. It is not talking about, for example, the land which might have been conveyed. It is not uncommon where there are leases and apartments in blocks that what is transferred by way of lease is the self-contained unit of the flat. The fact that the draftsman chose to use those words and gave them there a defined meaning for the remainder of the lease is significant.
Mr. David Holland QC, counsel for the defendant, said that I should also contrast the words used when the reference was to the lease of the garden because it was accompanied with the words "the land". I see the force of that as a point, although it is not an overwhelming one. It could simply have been the draftsman's standard usage when property upon which no building was placed to describe it as "land". What is plain is that the lease did not include any express demise of the sub-soil. Indeed, I expressed the view in argument to Mr. Tanney that it would have been unknown for a lease of a flat such as this to see such a reference, and Mr. Tanney, who is a very experienced landlord and tenant counsel, accepted that it was not something that he had ever come across.
I must turn then to look at the other clauses within the lease to see whether they assist me. Mr. Tanney submitted that the use of the "Flat" in this lease had two meanings, and that can be seen from the fact that on a number of occasions the "Flat" was used with its defined meaning, but in others the "Flat" plainly embraced more than the built accommodation. For example, Mr, Tanney pointed out that para.6 of the Fourth Schedule of the lease provided that;
"No clothes or other articles should be hung or exposed out the Flat (except in the garden), and no mats shall be shaken out of the windows of the Flat."
Mr. Tanney rightly said that obviously in this part of the lease the draftsman had thought about the garden. It seems to me that this is a piece of drafting that has neutral significance because the draftsman clearly has deliberately used the defined term "Flat", but in using the exception, as he does, I take the view that what he was intending to do there was to make clear that there was, in fact, in any event permission to put clothes and other articles out for hanging in the garden. I do not find that to be a provision that justifies me in saying that "Flat" is really used with two different meanings within this lease.
When I turn to many of the other provisions within the lease, I find that the use of the word "Flat" is consistent with the meaning of that which I have indicated, namely the built out part of the demise. For example, there is a recurring obligation in clause 2(8) and the Jarvis v. Harris clause in 2(11). Where the draftsman thought it necessary to distinguish between the "Flat" and the "Garden" he did so very clearly in clause 2(24).
A clause that again is a material one in deciding what was demised or not is, it seems to me, clause 2(2), which is the tenant's obligation to pay the service charge to the landlord. That is based on a one-third obligation on each of the tenants. It seems to me that that is consistent with the flats being sold on the basis that each had approximately the same kind of accommodation and it does not contemplate that there would be a development of a kind that would effectively add below ground an extra floor. Mr. Tanney answers that point by saying that the second floor tenant could develop the roof space. There is a difference there because, of course, the roof space was specifically demised and included. Mr. Tanney is right that where a tenant seeks permission to develop terms could be imposed However, it seems to me that what the initial, demise contemplated was that all properties would be the same.
I turn then to...
To continue reading
Request your trial
-
H Waites Ltd v Hambledon Court Ltd and Others
...of a presumption as to airspace in Ravengate Estates Ltd v Horizon Housing Group Ltd [2007] EWCA Civ 1368 at [8]. In Lejonvarn v Cromwell Mansions Management Co Ltd [2012] L&TR 31, the Deputy Judge appeared to favour such a presumption but then made a number of points as to why it did not a......
-
Brenda Anna Gorst v Anabel Mary Louise Knight
...I was referred concerning the subsoil in a building divided into flats horizontally was Lejonvarn v Cromwell Mansions Management Co Ltd [2012] L & TR 31. This was a decision of John Jarvis QC, sitting as a deputy judge of the High Court. In that case, the claimants were the tenants of flat ......