HCP (Hendon) Ltd, R (on the application of) v Chief Land Registrar (sued as HM Land Registry) & Anor

In determining the extent of a registered leasehold estate, the register cannot necessarily be read in isolation from the lease it identifies. The register may provide a general description, while the lease supplies the precise horizontal and vertical extent of the demise. A property-register statement that only the first floor is included does not, without more, exclude the roof or roof space. Clear words in a lease must be given effect and cannot be treated as an error by reference to extraneous material. Where a landlord has already demised overlapping premises, a later lease of the same premises can take effect only as a concurrent or reversionary lease, subject to the earlier lease.

HCP (Hendon) Ltd sought judicial review of HM Land Registry’s decision to register its 2019 development lease of the second floor and airspace at Henley Court as a concurrent lease, because the existing first-floor leases were found to include the roof and roof space. The claimant argued that the property registers, which described the titles as comprising only the first floor, could be relied on without inspecting the leases. It alternatively argued that the leases did not include the roof space, or that the new lease excluded any overlap. Permission was granted at a rolled-up hearing. The central issues were the effect of the register and incorporated lease documents, the interpretation of the existing leases, and the legal consequence of overlapping demises.

1. Application dismissed. The Registrar was entitled to register the 2019 lease as a concurrent lease.
2. Under the Land Registration Act 2002 and Land Registration Rules 2003, the property register must describe the registered estate and identify the lease, but the Registrar may make entries by reference to documents kept with the register. A person investigating the title must therefore inspect both the register and the lease where the precise extent of a leasehold demise is material. This includes whether the demise extends vertically to the roof and roof space.
3. The general boundaries rule in section 60 of the 2002 Act does not make the register’s description conclusive as to the precise vertical extent of the leasehold estate. The word “only” in the first-floor entries excluded the ground floor shown on the two-dimensional title plans. It did not exclude the roof or roof space.
4. The clear express terms of the leases for flats 2, 8 and 12 included the roof and roof space. Following Cherry Tree Investments Ltd v Landmain Ltd [2013] Ch 305 (CA) and Arnold v Britton [2015] AC 1619 (UKSC), the court could not treat those words as an error or rely on extraneous subjective material to remove them. The leases for the other first-floor flats were also properly construed as including the roof space where they expressly included the roof.
5. The definition of the second floor in the new lease could not be interpreted to eliminate the overlap. A landlord who has granted exclusive possession of premises cannot grant the same premises again for the same term. The later lease therefore operated subject to the existing leases as a concurrent or reversionary lease, consistently with Street v Mountford [1985] AC 809 and section 149(5) of the Law of Property Act 1925. Any desired result required surrender or rectification, not interpretation.

The judgment was a first-instance judicial review decision. Murray J directed that permission and the substantive claim be dealt with at a rolled-up hearing. Permission was granted and the claim was dismissed by the High Court (Administrative Court).