A recent case, H Waites Ltd v Hambledon Court Ltd, concerned a development built in the early 1960s comprising twelve flats and two blocks of garages. Each flat lease was for a term of 999 years and included a garage within the demise.

The landlord granted a lease of the airspace above the garage blocks to a developer to facilitate the construction of additional flats. However, the developer met with strong opposition from the existing flat tenants, who laid claim to the garage roofs and airspace above.

Each tenant’s lease demised the internal areas of the flat to the tenant (excluding the roof, foundations and external and main structural parts of the building) together with a garage, which was described only by reference to a plan. Was the garage roof included in each demise, or did the exclusions of the structure and exterior apply to the garages, as well as the flats?

The judge decided that the fact that the parties had expressly excluded the main structure when defining the flat, but had not done so when defining the garage, indicated that they had intended to treat them differently (even though each tenant was, as a result, responsible for repairing the part of the roof immediately above his own garage).

Moreover, the grant of a 999-year lease is much closer to a freehold than a lease and such a grant of a garage is therefore likely to include the airspace above and subsoil below.

The judge also considered it unlikely that landlords in the early 1960s would have foreseen the benefit of retaining airspace.

Finally the judge pointed to the cases of Davies v Yadegar (1989) and Haines v Florensa (1989), in which it was held that a lease of the top part of a building which included the roof also included the airspace above the roof.

Consequently the airspace lease granted to the developer by the landlord took effect subject to the leases of the existing tenants. It would therefore be impossible for the developer to construct new flats without trespassing into the tenants’ airspace.