Delgable Ltd v Perinpanathan

Whether a roof forms part of a sub-lease of upper floors depends on the particular building, its subdivision, relevant surrounding facts and the lease’s language. References to buildings, structures or exterior surfaces do not by themselves include the roof. A broad covenant requiring a fair contribution towards expenses for things used in common with retained or adjoining property may show that the roof remains outside the demise. Here, the roof was not included in the underlease. The intermediate tenant remained responsible for repairing it under the head lease, while the sub-tenant was liable to contribute 60 per cent of the cost.

Delgable Ltd acquired the freehold reversion of 153 Praed Street, where Mrs Amara Perinpanathan held the head lease and Delgable held a sub-lease of the first, second and third floors. Neither lease expressly referred to the roof. In proceedings concerning breaches of the head lease, Delgable claimed damages for the cost of repairing the roof.

The Central London County Court held that the roof was not included in the sub-lease. Mrs Perinpanathan remained liable to repair it under the head lease but could recover a 60 per cent contribution from Delgable under the sub-lease. The appeal concerned whether the roof formed part of the sub-leased premises.

Lord Justice Lloyd gave the leading judgment. Lord Justices Keene and Pill agreed.

1. Applicable approach. Whether a roof is included in a demise is a question of construction applied to the particular facts. The court must consider the building or structure concerned, the manner in which it has been subdivided, any other relevant facts and the terms of the particular lease. Cases concerning roofs are fact-sensitive and do not establish a universal rule. [33]–[34]
2. Construction of the underlease. The description of the premises as the first, second and third floors, together with the access stairway, was capable of referring to a lateral division of the building. The provisions concerning exterior decoration, buildings, structures, alterations and inspection were equivocal. They did not establish that the roof was included. Particular weight could not be placed on the word buildings as implying that a roof must form part of the demise, especially where the sub-lease was carved out of and matched the head lease. [25]–[29]
3. Repairing responsibility and contribution. The covenant requiring payment of a fair proportion of expenses relating to things used in common with the premises and adjoining or nearby property was sufficiently broad to include the roof. The roof therefore remained outside the subletting and was the intermediate tenant’s responsibility to repair under the head lease. The sub-tenant was nevertheless liable to contribute 60 per cent of the repair cost under the common-use covenant. [30]–[32]

The appeal was dismissed. Costs were awarded in the agreed sum of £7,250 inclusive of VAT, payable within 14 days.

1. Court of Appeal (Civil Division): Appeal dismissed, with costs assessed at £7,250 inclusive of VAT. [2005] EWCA Civ 1724
2. Central London County Court: Mr Recorder Sapsford QC held that the roof was not included in the sub-lease, that the head tenant remained liable to repair it, and that Delgable was liable for a 60 per cent contribution.