In Francia Properties Ltd -v- Aristou C10CL 211 (County Court) 2016 the question that the judge had to answer was whether a landlord was entitled to construct a new flat in the air space above a small block of flats, which was managed by a right to manage company formed in accordance with the Commonhold and Leasehold Reform Act 2002.
The landlord had specifically excluded the roof from the leases of the flats and had reserved the right to build, rebuild or alter any buildings on the land that it owned, “other than the Building”, even though this might obstruct the light reaching any windows or other openings in the flat.
The tenants claimed that this prevented the landlord from altering or developing “the Building” which contained their flat. However the judge decided that the purpose of the clause was to ensure that the tenants did not acquire prescriptive rights to light against the landlord. Therefore the clause was not expressly prohibitive and so could not stop the landlord from developing or altering the Building.
Would the development be a breach of the landlord’s covenant for quiet enjoyment and/or derogation from grant? The answer to this question turned on whether the development would render the top floor flat unfit or substantially less fit for the purpose for which it was let. The judge decided that it would not. The development would overshadow the terrace but this was only a part of the demise and was not just a space for enjoying the sunshine. It provided a view, access to fresh air, an area for relaxation and a space for drying laundry and growing plants – and, although the roof top development would affect the amenity of the flat, it could not be said that the increased shadowing that it would cause would reduce access to sunlight below an “irreducible minimum”, thereby rendering the flat materially or substantially less fit for its purpose.
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