Harbrinder Singh Khosa & Ors v Manmatharayan Ganesaryan & Anor

A transfer of a defined part of a building must be construed by reference to its factual matrix at the date of execution. Clear words limiting a transfer to ground-floor level may exclude all airspace above the transferred extension, even if that creates a flying freehold and an undulating boundary.

Where trespass is established, the court should first decide whether there is sufficient evidence to rebut the presumption in favour of an injunction. If rebutted, it must then exercise an evaluative discretion by weighing the parties’ respective prejudice and the adequacy of damages. An injunction may be suspended until a specified contingency, and damages in lieu may be capitalised where the period of infringement is indefinite.

The appellants appealed from a decision of Recorder Midwinter KC concerning the ownership of airspace above a rear extension at 101 Whitton Road. The transfer conveyed the ground-floor level of the extension but did not expressly define the vertical boundary.

The respondents had placed refrigeration units on the extension roof. The County Court held that the transfer included airspace up to the highest part of the roof and dismissed the trespass claim. It also indicated that, if trespass had been established, damages rather than an injunction would have been appropriate.

The appeal concerned construction of the transfer, procedural fairness, and the proper approach to injunctive relief and damages in lieu.

1. Construction. The appeal was allowed on the construction issue. The words transferring the ground floor “only” were sufficiently clear to exclude airspace above the extension. The omission of express words concerning subsoil and airspace in the definition of retained land did not outweigh that language.
2. The transfer had to be construed by reference to the factual matrix at 5 June 1998. The reference to the extension meant the actual extension and its actual roof at that date. An undulating horizontal boundary was possible. No term required the boundary to be a straight line or to be fixed at the height of the roof’s highest section. The satellite dish was irrelevant to construction, since its retention and maintenance rights presumably passed under section 62 of the Law of Property Act 1925 and/or the rule in Wheeldon v Burrows. Access for repairs was available under the transfer or the Access to Neighbouring Land Act 1992.
3. The refrigeration units therefore constituted a trespass. The procedural ground was not determined insofar as it related to construction. In relation to the injunction issue, the witness statement and cross-examination gave sufficient warning that the units were necessary for a substantial part of the respondents’ business. The presumption in favour of an injunction was therefore rebutted without procedural unfairness.
4. The discretion was a two-stage inquiry. First, the court asked whether sufficient evidence rebutted the presumption. Secondly, it made an evaluative assessment of whether an injunction should be granted, including the parties’ prejudice and the adequacy of damages. Appellate intervention was justified only for an irrational assessment in the Wednesbury sense.
5. The possibility of future development of the airspace had not been properly explored at trial. If planning permission were obtained and could not reasonably be implemented while the units remained, the appellants’ prejudice would substantially outweigh the respondents’ prejudice. The court therefore granted an injunction requiring removal, suspended unless and until that contingency occurred.
6. Damages in lieu were upheld at £100 per week but capitalised at £50,000, representing the entire damages from 23 December 2021. If the suspension were lifted, repayment of a proportionate part of that sum was required. The appellants received two-thirds of their trial and appeal costs, with £60,000 payable on account by 17 April 2026.

• High Court, Chancery Appeals: Appeal allowed. The County Court’s construction was reversed; the units were held to be trespassing. A suspended injunction was imposed and damages were capitalised at £50,000.
• County Court at Central London: Recorder Midwinter KC held that the transfer included airspace up to the highest part of the extension roof and dismissed the trespass claim.