Lejonvarn & Anor v Cromwell Mansions Management Company Ltd

A lease of a flat does not automatically include the sub-soil beneath it. The ordinary presumption that ownership of land extends upwards and downwards applies cautiously to leasehold interests, particularly where a building has been divided into separate flats. The lease must be construed in the context of the whole property and its scheme of rights and obligations. The presumption may be excluded by express wording or by necessary inference. A carefully defined demise of the built accommodation, provisions retaining responsibility for foundations in the freeholder, and rights relating to services running under the building may establish that the sub-soil was retained.

The claimants held a 999-year lease of the ground-floor and basement flat at 65 Cromwell Avenue. They proposed substantial works involving excavation beneath the existing floor and garden. The defendant, the freehold owner and management company, contended that the lease did not include the sub-soil, so that the question of consent under the lease did not arise.

At trial, the parties agreed that the court should determine at least whether the demise included the sub-soil. The claimants relied first on construction of the lease and alternatively on the presumption that a conveyance of land includes the airspace above and soil below.

1. Construction. The lease was to be interpreted as a contract, taking account of the surrounding circumstances and commercial efficacy. The defined term “Flat” referred to the built accommodation: the ground floor, basement and cellar flat. The lease separately referred to the garden as land and contained no express demise of the sub-soil.
2. The structure of the lease supported retention of the sub-soil and foundations by the freeholder. The service-charge arrangement contemplated broadly equivalent flats rather than a development adding an extra floor below ground. The lessor’s covenant to maintain the foundations was significant because their failure could affect all three flats. The reservation of rights for services running “under” the building strongly indicated that the tenants had no proprietary interest in the sub-soil. The repairing covenant could not determine the extent of the demise.
3. Presumption. The principle expressed by cuius est solum may apply to leasehold interests, but it cannot be applied mechanically where a lease forms part of a building divided into separate units. Its application depends on the particular lease and the context of the whole property. The arrangements here did not naturally place the ground-floor flat in the same category as a freehold property or a lease expressly including roof space.
4. The presumption was in any event excluded by inference from the careful definition of the Flat, the allocation of responsibility for the foundations, and the other lease provisions. Had it applied, the parties accepted that there was no further evidence capable of rebutting it.
5. The declaration that the lease included the sub-soil was therefore refused.