Cadogan & Anor v McGirk

For a statutory new lease of a flat, an area need not form part of the flat itself in order to be included as an appurtenance. Where property belongs to, or is usually enjoyed with, the flat and is let with it, an allocated storage room within the building or its curtilage may be appurtenant even though it is remote from the flat and separately demised.

The terms must be construed fairly to give effect to the tenant-protective purpose of the Leasehold Reform, Housing and Urban Development Act 1993. Earlier authority on similar language must be read in its statutory context. A room within the building is not an outhouse, and a remote storeroom may not form part of the same separate set of premises as the flat.

The respondent held a second-floor flat in Wyndham House and, under a separate agreement for the same term, an attic storeroom used for household storage. He served a notice seeking a new lease under Chapter II of Part I of the Leasehold Reform, Housing and Urban Development Act 1993, including the storeroom.

Judge Krikler, following transfer of the proceedings to the Willesden County Court, held that the storeroom was an appurtenance and dismissed the freeholders’ application for a contrary declaration. The freeholders appealed. The tenant contended alternatively that the room was part of the flat or an outhouse. The central issue was whether the room had to be included in the statutory new lease.

1. Appeal dismissed unanimously. Millett LJ gave the reasoned judgment, with which Thorpe and Waite LJJ agreed. The attic storeroom was an appurtenance of the flat and had to be included in the respondent’s new lease.

2. The room was not part of the flat under section 101(1). Whether premises on different floors form one separate set of premises depends upon their physical configuration, proximity and whether they can naturally be regarded as a unit. Separate leases do not prevent property from being part of one flat, but this storeroom and the second-floor flat were distinct physical units with no natural or physical relationship.

3. The room was not an outhouse under section 62(2). An outhouse is an outside or subsidiary building in the grounds of or adjoining the principal building. A room within the same mansion block is not an outhouse merely because it lies outside the flat.

4. However, it was an appurtenance. In the context of flats in a block, appurtenant property need not fall within any curtilage of the individual flat or pass under an assignment of that flat without express mention. It is sufficient that it belongs to, or is usually enjoyed with, the flat, is let with it, and, if it is land or a building, lies within the block or its curtilage. The separate demise of the storage room was expressly contemplated by section 7(6).

5. The court construed the Leasehold Reform, Housing and Urban Development Act 1993 fairly and so as to make its tenant-benefiting purposes effective. Earlier authority under the Leasehold Reform Act 1967 required careful regard, but could not control where the statutory context differed. The storage room was allocated to, let with and used with the flat; it was therefore included in the extended statutory meaning of the flat.

6. The appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the freeholders’ appeal in [1996] EWCA Civ 1340.
• Willesden County Court: following transfer from the West London County Court, Judge Krikler dismissed the freeholders’ application for a declaration on 26 October 1994 and held that the storeroom was an appurtenance of the flat.