If you are the tenant of a building, and in particular the tenant of a top-floor flat, your lease may grant you rights in relation to the airspace above your flat. But if it doesn’t, what happens when your landlord decides that they want to make rather a lot of noise and cause rather a lot of mess building another few floors on top of your otherwise peaceful home?
Of course, every lease is different, but for the purpose of this article, I have considered some of the terms which are usually contained in long residential leases. Specialist advice should always be taken on your particular set of circumstances.
Quiet Enjoyment
As a tenant, you have the right to quiet enjoyment of your flat. The long-established doctrine of quiet enjoyment is implied into every lease if it is not expressly included, and gives the tenant freedom from interference by the landlord with the tenant's use of the property. Courts have held in the past that obstruction of access to a property and excessive noise, dust and dirt caused by work on a neighbouring property have all been a breach of the covenant of quiet enjoyment. As such, your landlord must be careful to ensure that any disruption or interference is kept to a minimum or they would risk a potential action for breaching the lease.
Derogation from Grant
Your landlord is subject to an implied obligation not to derogate from its grant, which means that the landlord must not do anything (including using other land that it has retained) which makes the leased premises materially less fit for the purpose the lease was granted.
There is a large amount of case law on the derogation from grant, which has established that even where a landlord has the express right to redevelop or carry out works, it must not render the tenant’s premises unfit for purpose and must at all times act reasonably. The standard of reasonableness will be higher where works are carried out solely for the benefit of the landlord, and in any event a landlord should:
- Give as much notice as possible to the tenant, including details of the programme of works, how long they will last and how the disturbance will be minimised;
- Take all reasonable steps to minimise the disturbance to the tenant and ensure that all practical measures are implemented by the contractor and project manager; and
- Where appropriate, make an offer of financial compensation for the inconvenience caused to the tenant.
A landlord’s unreasonableness may be sufficient to render its proposed works a derogation from grant, and as such it is vital for a landlord to act reasonably and in open dialogue with the tenant at all stages of the development process.
Breach for the Sky
There are various other provisions which may be included in your lease, and it is important to check whether they are likely to be breached should the landlord go ahead as they plan.
Does the demise expressly exclude the exterior surfaces above and below the flat?
This is a common provision, and would mean that the exterior surfaces of the walls, ceiling and floor of your flat are retained by your landlord. However, they must be careful not to cut into or injure those parts of the flat which are demised to you.
Are there any rights to use a roof terrace or balcony situated on the top floor?
Even if the roof has not been demised to you, any rights you may have in relation to the roof of the building must be respected. For example, you may have a right of access or a right to store things on the roof. Your landlord will need to ensure that any works carried out on the property do not impede your ability to use the roof (if you are so entitled to do so), otherwise they may be derogating from their grant. Clearly, building an additional property would fall foul of this.
Is the right to extend upwards expressly granted or prohibited?
If so, the position is slightly clearer. If not, the default position is that your landlord owns the airspace above the building and can therefore build in that airspace, but on a practical level they will also need certain other rights to be able to do this. For example, if they need to enter your property to strengthen the structure of the building, they will need the express right to do this to be contained in your lease.
What about a right for the landlord to redevelop?
Most modern leases contain an express right for the landlord to redevelop the property. This is broader than a right to extend upwards, and would be sufficient for your landlord to rely on if they want to start adding storeys. Without this, however, your landlord is in a weaker position.
Do you have a right of first refusal?
If, by virtue of the Landlord and Tenant Act 1987, you have the right of first refusal to acquire other flats in your building, this right may also apply to any additional units built on top of the building. If your landlord does not offer them to you first, they may be committing a criminal offence.
Conclusion
If you are concerned about your landlord planning to extend your building upwards, it is important to check whether or not they are able to do so. Even if they can, you still have the right to be able to enjoy your property as it was sold to you. I would always encourage landlords to engage in open dialogue from an early stage so that tenants can ascertain the extent of the plans and how they will be affected, and for everybody to be clear about which rights have been granted to and retained by the interested parties.
Grant Duranti, Trainee Solicitor at Pemberton Greenish
