High Court Halts Leaseholder's Unfettered Attempt To Convert Their Basement And Curses ‘Soiled Again'!

In a recent appeal between the freeholder and the leaseholder of a ground floor flat, the High Court has judged that the subsoil below the property did not belong to the ground floor and basement flat.

A freehold house in London had been divided into two maisonettes; one on the ground floor including a small basement (Flat 1) and one on the first and second floors (Flat 2). The leaseholder of Flat 2 was also the Freeholder of the building. This is a common set up and can be seen in most built up parts of the UK.

The Lease

The original lease of Flat 1 was granted on 17 December 1992. That 1992 lease demised the ground floor and the cellar beneath the ground floor, together with the patio at the back, for 99 years. However, a lease extension under the Leasehold Reform, Housing and Urban Development Act (1993) was later obtained, and took effect from 12 May 2016. The result was that a new lease was granted, on the same terms as the old, but for a term now of 189 years.

The owner of Flat 1 wished to convert the cellar into a living space, thus increasing the overall size (and value) of the property. As the cellar was only 5 feet high, it was decided that some more height was needed to make it habitable. This extra height could only be obtained by digging into the subsoil below the cellar, by around another 4 feet. The Leaseholder of Flat 1 obtained planning permission from the local authority to carry out the works, but the Freeholder opposed these plans.

Why did the Freeholder object?

The Freeholder's argument was that while Flat 1 included the cellar, as per the terms of their lease, it did not include the subsoil below the cellar. As the owner of Flat 1 did not own the subsoil, their planned development would amount to a trespass on the Freeholder's property and could not go ahead.

The main issue before the Court was this: when the lease was granted for Flat 1 was the subsoil included (either expressly or implicitly) in the land demised by the lease?

The parties agreed that, in line with current authorities, that a freehold interest in land will include everything below the surface and up to the sky, based on the latin maxim: Cuius est solum, eius est usque ad coelum et ad inferos (a curiously biblical legal term meaning "whoever's is the soil, it is theirs all the way to Heaven and all the way to Hell"). Therefore, if the lease of Flat 1 did not grant the subsoil to the Leaseholder, it must belong to the Freeholder.

It was commented on that...