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Court rules that ground floor maisonette lease does not include the subsoil beneath it

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A court has rejected a flat owner’s bid to convert the cellar into a habitable room, as he did not own the subsoil beneath the property. In the case of Gorst vs Knight, the former party – the owner of the lease to a ground floor and cellar flat – wanted to make changes to bottom of the property that would have involved excavating land in order to increase the ceiling height by an addition four feet.

While the local council approved the plan to convert the cellar into a new room, the freehold owner was against the idea.

This led to a legal dispute regarding whether Mr and Mrs Gorst’s lease entitled them to excavate the subsoil at the depth they were seeking.

A court has now ruled in favour of the freeholder, who owned the other flat in the same house.

A partner at Winckworth Sherwood commented: “With the increased cost of moving up the housing ladder for expanding families and the effect of Brexit and other factors on confidence extending into the basement can be an attractive option.

“In many cases, it may be that the flat owner is unable to extend in this way without their landlord’s cooperation. This needs to be bottomed out before they incur cost working up plans and seeking any necessary statutory consents.

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“The answer lies in the contract between the flat owner and their landlord: the lease. It needs to be established whether the subsoil to be dug into belongs to the flat owner and, if so, whether any of the restrictions in the lease mean that, despite owning the land, the flat owner can’t proceed without obtaining the landlord’s prior consent.

“Unfortunately for flat owners, this case ((1) Brenda Anna Gorst and (2) Charles Gorst v Anabel Mary Louise Knight (2018) [2018] EWHC 613 (Ch)) has clarified that there is not a presumption that the subsoil belongs to the relevant flat owner. Instead, the lease needs to be carefully examined to see whether it expressly (or by implication) grants ownership of these parts to the flat owner.

“There may not be express words dealing with this, in which case other pointers in the lease need to be examined. Unfortunately for the flat owner in the above case, there was no express reference to their ownership including the subsoil and there were pointers in the other direction contained in other terms of the lease.

“Flat owners need to consider their position carefully before making an approach to the landlord for their cooperation as, if that isn’t forthcoming, it might operate against them in the event they later make a collective enfranchisement claim for the freehold interest in the building.”

“Landlords on the other hand need to consider the lease terms carefully when considering an approach for consent to develop or a claim for the freehold interest as they may otherwise fail to call for a share of the development value. For example a flat owner may seek consent pursuant to an alterations restriction (the terms of which might state the landlord can’t unreasonably withhold consent and so charge a premium as a condition for granting it) in the belief that they own the land to be taken in when in fact the subsoil doesn’t belong to the flat owner in the first place and so the alterations restriction doesn’t come into play and they can be held to ransom by their landlord potentially.”

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