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Who owns
the airspace above your property?
If your
property is freehold - you do.
This might
also be true if you have a lease of a whole building, or even only the top
floor (if it includes the roof).
It depends
on what your lease says.
Unless the
lease specifically excludes the airspace, it may be found to belong to the
tenant for the duration of the lease.
Airspace
can be valuable.
For
example, if a landlord wants to install solar panels on the roof or telecoms
equipment, creating a further income stream, it needs to retain the airspace
and exclude it from the tenant's lease (its "demise").
A recent High
Court case* concerned a block of flats and two blocks of garages, built in the
1960s and let on 999 year leases.
Here the
developer wanted to do a lot more that erect some aerials - it wanted to build
a flat on top of each of the garage blocks - but the tenants objected saying
that because their leases did not expressly exclude the airspace above the
garages, it was included in their demise.
Mr
Justice Morgan held that the demise did include the roof of the garage "but
that does not by itself determine this issue as to the airspace".
As there
was no express exclusion of the airspace, he looked at the whole wording of the
leases and the nature of the lettings, and concluded the tenants did own the
air above the garages.
The fact
that the leases were for terms of 999 years - virtually freehold - influenced
the court.
It was, in
Mr Justice Morgan's view, reasonable to assume a lease of this duration would
include the airspace and in practice it was very likely the tenants would need
to replace the garages - it was inconceivable they would last for 999 years.
To rebuild
the garages, the tenants would need the airspace.
The case
serves as a reminder that landlords - and tenants - need to think carefully
about how to treat airspace in leases.
If it's to
be excluded, they should also consider who will be responsible for repair of
the roof; what rights of access the tenant might need; and whether the tenant
also wants rights to place equipment on the roof (aerials and dishes for example),
and associated cabling and conduits.
Thank you for your blog.
ReplyDeleteWhat if you find yourself in a situation whereby you own 25% of a freehold, the remaining 75% of the freehold is owned by three other neighbours (at 25% each) freeholders and is managed in the form of a limited company?
The airspace is directly solely above your own dwelling and does not hinder them in any way, including rights of light. (Solar study undertaken).
Is it a simple case of majority rule if they go against your granted planning permission?
Thanks.