Kiran Rajaram Patwardhan & Anor v Ivygate Developments Limited

A lease must be construed according to its natural meaning and the agreement read as a whole. A description such as “first floor maisonette” may identify the relevant dwelling without confining the demise to a horizontal plane. The court should consider the allocation of structural boundaries, access arrangements and repairing obligations. Extrinsic evidence is unnecessary where the lease is clear, although it may clarify, rather than contradict, the document. A notice under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 is invalid if it includes property outside the tenant’s demise, subject to appropriate amendment.

The appellants were leaseholders of a first-floor maisonette under a 1966 lease. They served a notice under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 seeking a new lease. The notice included roof space above the maisonette.

The respondent freeholder applied under Part 8 for a declaration that the notice was invalid because the roof space was not demised. The Recorder declared the notice invalid and granted permission to appeal. The central issues were the proper construction of the lease and, alternatively, adverse possession and registration.

1. Appeal allowed. The notice was not invalid on the basis relied upon because the roof space formed part of the demise.
2. Under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993, inclusion in the notice of property which ought not to have been included invalidates the notice unless it is appropriately amended. That proposition was treated as established by Malekshad v Howard de Walden Estates (No 2), [2004] 1 WLR 862.
3. Applying the approach to contractual construction in Arnold v Britton, [2015] AC 1619, the words “first floor maisonette” identified the upper dwelling and did not confine the demise to a horizontal plane. The lease separately allocated one half of the concrete between the floors, but contained no equivalent reservation or boundary excluding the space above the first floor.
4. The repairing provisions reinforced that construction. The landlord’s obligations concerning the roof, main structure and boundary walls were consistent with those parts being within one or more demises, while the landlord’s access rights were limited to inspection and repair. If the roof space had been retained by the landlord, the lease would be expected to provide more extensive access.
5. The lease was unequivocally clear, so extrinsic evidence was unnecessary. Taylor v Lambert, [2012] EWCA Civ 3 at [32]–[33], did not require recourse to such evidence in this case. The evidence in any event was not analysed because it was ultimately irrelevant.
6. It was unnecessary to determine adverse possession or the respondent’s registration point. The Recorder’s factual findings were entitled to substantial appellate respect. The appeal was allowed for the reasons concerning construction of the lease.

• Chancery Appeals: Appeal from the order of Mr Recorder Hansen allowed. The Recorder had declared the section 42 notice invalid because it included the roof space.