A house and an adjoining building had been first demised under one lease, then separated vertically. Two separate residential properties now existed.
Held: The vertical division meant that the two houses could not be enfranchised as one under the Act. The Act also provided that where a property had been divided in such a way that one property lay in part under the other, the Act provided that the Landlord could serve a notice of objection if the projection was material. Birrane was wrongly decided since it used the landlord’s property to determine what was material, and the property in question was the one to be enfranchised. Issues about the enforcement of positive obligations, and flying freeholds could be addressed under 2(5).
Nicholls of Birkenhead, Hope of Craighead, Hobhouse of Woodborough, Millett, Scott of Foscoe LL
Times 06-Dec-2002, [2002] UKHL 49, [2003] 1 AC 1013, [2002] 3 WLR 1881, [2003] 1 All ER 193, [2002] 50 EGCS 114, [2003] 1 EGLR 151, [2002] NPC 160, [2003] HLR 31, [2003] 1 P and CR DG18, [2003] L and TR 13
House of Lords, Bailii
Leasehold Reform Act 1967 2(2) 2(5)
England and Wales
Citing:
Overruled – Duke of Westminster and Others v Birrane CA 17-Nov-1994
A basement extending under the house next door means that the property with the basement is not a not a dwelling-house for leasehold enfranchisement purposes. The result would create difficulties with flying freeholds. ‘The primary purpose of . .
Appeal from – Malekshad v Howard De Walden Estates Limited CA 23-May-2001
The applicant sought the leasehold enfranchisement of two leasehold properties. They were contained in separate leases, but the property had been treated as one for some time. A part of one property extended under part of the other. The claim was . .
Doubted – Parsons v Trustees of Henry Smith’s Charity CA 1973
‘Materiality under the section ‘must mean material to the tenant or to his enjoyment of the house.’ . .
Cited – Parsons v Trustees of Henry Smith’s Charity; Parson v Gage HL 1974
The House left open the exact meaning of the phrase ‘material’ in the section noting that whether a part is material is an issue which must be largely factual and one of common sense. The legislative purpose of the rule that divisions of the . .
Cited – Malpas v St Ermin’s Property Ltd CA 1992
. .
Distinguished – Tandon v Trustees of Spurgeons Homes HL 1982
Tenants sought enfranchisement of their properties, but 75% of building consisted of a shop, and only 25% was living accomodation.
Held: The tenants were entitled to buy the freehold. The question whether a building is a house ‘reasonably so . .
Cited – Ex parte Allen 1985
A caravan cannot be a house. . .
Cited – Chelsea Yacht and Boat Club Ltd v Pope CA 6-Apr-2000
The tenant sought to assert that he occupied a houseboat, the Dinty Moore, under a tenancy of a dwellinghouse under the 1988 Act. The claimant appealed a decision that it was.
Held: A house-boat, even though used as a dwelling, did not have . .
Cited – Lake v Bennett CA 1970
The building had been constructed in 1869. It was used as a house on three floors with a basement. The ground floor was later used as a shoe repairing shop and then as a betting shop with living accommodation still used for dwelling purposes in the . .
See also – Malekshad v Howard de Walden Estates Ltd (No 2) ChD 19-Dec-2003
The tenant gave notice to enfranchise his leasehold property. The landlord resisted saying it had been given after the tenancy had expired and also that it purported to include property not capable of enfranchisement.
Held: A notice which . .
Cited by:
Cited – Collins v Howard De Walden Estates Limited CA 16-Apr-2003
The tenant sought the right to purchase the freehold reversion. Her landlord resisted saying that the properties were excluded from enfranchisement being divided vertically.
Held: The cases are fact dependent, and earlier precedents must be . .
Appealed to – Malekshad v Howard De Walden Estates Limited CA 23-May-2001
The applicant sought the leasehold enfranchisement of two leasehold properties. They were contained in separate leases, but the property had been treated as one for some time. A part of one property extended under part of the other. The claim was . .
See also – Malekshad v Howard de Walden Estates Ltd (No 2) ChD 19-Dec-2003
The tenant gave notice to enfranchise his leasehold property. The landlord resisted saying it had been given after the tenancy had expired and also that it purported to include property not capable of enfranchisement.
Held: A notice which . .
Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Cited – Neville v Cowdray Trust Ltd and Another CA 5-May-2006
The applicant claimed the right to purchase the freehold reversion for her home. The defendant said it was not held under a low rent so as to qualify, since the rent exceeded the rateable value as assessed. The rating list had been altered meantime . .
Cited – Grosvenor Estates Ltd v Prospect Estates Ltd CA 21-Nov-2008
The tenant under a long lease sought enfranchisement. The landlord denied that it was a ‘house’ reasonably so called within the 1967 Act. The building had been constructed as a house, but was now substantially used as offices. They could only be . .
Cited – Ackerman and Another v Lay and others (Portman Estate Nominees (One) Ltd) CA 16-Dec-2008
The landlords resisted a claim for enfranchisement saying that the appellants were no longer tenants under section 42 of the 1993 Act, the lease having expired. The property was made up of five flats, and was not itself a house.
Held: The . .
Cited – Magnohard Ltd v Cadogan and Another CA 4-May-2012
The parties disputed whether a building was a house ‘reasonably so called’ within the 1987 Act. The instant building was designed or adapted for living in, and was divided horizontally into six flats or maisonettes, and included shops.
Held: . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant, Land
Leading Case
Updated: 02 November 2021; Ref: scu.178328