Leasehold enfranchisement

Citation

(2002), "Leasehold enfranchisement", Property Management, Vol. 20 No. 1. https://doi.org/10.1108/pm.2002.11320aab.008

Leasehold enfranchisement

Leasehold enfranchisement

Malekshad v. Howard de Walden Estates [2001] 38 EG 190

In this case the principal point at issue was whether the property in question could reasonably be called a "house" for the purposes of the Leasehold Reform Act 1967 (although there were also raised what can only be described as some singularly obscure points under that Human Rights Act 1998). The property in question comprised a substantial private dwelling facing onto one street (Harley Street), together with a mews cottage to the rear and facing onto another street (Weymouth Street), the two buildings having been occupied together, at least until the 1930s, as "a single house…adapted to the needs of a single, prosperous household and its servants…". In 1935 or thereabouts, internal works of conversion were carried out which would seem to have resulted in the part of the property facing Harley Street and the part of the property facing Weymouth Street becoming physically connected, more or less, (although the precise details are not entirely clear) either via the ground floor or via a newly constructed or newly extended basement flat. However, it would appear that whatever precise means of access existed between one part of the property and the other, from about 1970 this was unused and even physically obstructed, and this remained the position until 1997.

The Court of Appeal considered the facts of the case in some considerable detail, and referred to a number of decided cases, and in particular to Tandon v. The Trustees of Spurgeon's Homes [1982] AC 755; [1982]2 EGLR 73; (1982) 263 EG 349, before deciding that the judge at first instance had been wrong in holding that the property as a whole could not reasonably be described as a "house".

In the words of Robert Walker LJ:

From 1775 … and until some date in the 1930s (at the earliest) it would have been reasonable and natural to call the whole of [the] structure a house. It was still described as (essentially) a house and garage building when [a new] headlease was granted in 1949 although by then the original groom's or coachman's sleeping quarters in the mews had been converted (or were in course of conversion) to more modern residential accommodation … This was replicated in the [terms of a new] underlease [granted in 1967].

At all times down to 1997 there was a means of access between [the two parts of the property], although from 1970 or 1974 the access was not used and the door [between the two] was either locked or (as the judge put it) blocked … But the physical shape of the entire structure remained essentially the same despite these internal rearrangements from the middle of the nineteenth century until 1997 … In my view it remained a single house for the purposes of the 1967 Act at the time when the notices [to enfranchise] were given in 1997…".

Also, contrary to the view taken by the judge at first instance, the fact that there was some slight degree of horizontal "overlap" between different parts of the building or buildings concerned did not affect the decision of the court: they were extremely slight and for the purposes of the Act were not to be regarded as "material".

As to assignment of the statutory right to enfranchise where the lease is assigned once the process of enfranchisement has been commenced, see: South v. Chamberlayne [2001] 43 EG 190.