[2025] UKUT 64 (LC)

“Weycroft” is a substantial house on three floors set in large gardens at 78 Portmore Park Road in Weybridge. Although built around 1900 as a single residence it was later converted into four flats in the late 1950’s. The ground floor flat is referred to as Flat 1 and although there are only four flats in total, the first floor flat is referred to as Flat 5.

In December 1959 the common parts and main structure of the building were let on a long lease to a management company, the appellant, Weycroft, Weybridge Ltd, which then joined in the leases of individual flats and covenanted to manage the building and provide the usual services.

Flat 1 occupies almost the whole of the ground floor of the building. It was originally demised for a term of 99 years by a lease granted in September 1960. The three parties to the Lease were Wessex Development Co Ltd as Lessor, the appellant as Management Company, and a Mr Entwistle, as Lessee.

In December 1994 the lease was the subject of Deed of Variation, which extended the term to one of 125 years from 24 June 1993. There were two parties to the Deed, the appellant, which by that stage had acquired the freehold reversion, and Mr Entwistle. The lease of Flat 1 and its Deed of Variation were the only title documents shown to me. None of the leases of other flats in the building were in evidence, nor was the 1959 lease of the common parts which had been granted to the appellant. From now on I will refer to the lease of Flat 1 simply as “the Lease”.

The whole building is referred to in the Lease as “the Property” and is described in the First Schedule. The premises demised by the Lease are referred to as “the Premises”, an expression defined in clause 1(g) by reference to the Third Schedule. From the Third Schedule the Premises included Flat 1 itself together with a garden, garage and driveway shown on two plans. The garden which forms part of the Premises surrounds the building on three sides. The demise also includes “the ceilings and floors of the said Flat and the joists and beams on which such floors are laid (but not the joists or beams to which any such dwelling is attached)”. The “main external structural parts of the Building … including the roof foundations and external parts thereof …” were expressly excepted and reserved out of the demise.

The common parts and the external main structural parts of the Property are referred to in the Lease as “the Reserved Property” and are described in the Second Schedule. The Reserved Property includes the roofs, foundations and external walls, “and the joists or beams to which are attached to any ceiling except where the said joists or beams also support the floor of a Flat”. The third recital to the Lease explains that the Reserved Property had already been demised by the December 1959 Lease to the Management Company.

The effect of the Third Schedule was that, when first demised, the Premises comprised Flat 1 and the garden surrounding it, up to the walls of the building on three sides. It also included the floor and floor joists and the ceiling, but not the ceiling joists which supported the floor of the flat above. It included the interior surfaces of exterior walls, but not the remainder of the exterior walls.

The Lease imposed no positive obligations on the Lessor. Responsibility for the upkeep of the Property was divided between the appellant, as Management Company, and the lessees of the individual flats.

By clause 4 the Management Company covenanted with the Lessee that it would perform the obligations in the First Part of the Sixth Schedule. By paragraph 1 of the Sixth Schedule it agreed to keep the structure of the Property in repair and to perform and observe the covenants in the Lease of the Reserved Property. Additionally, by paragraph 6, it agreed “To keep the Reserved Property and all fixtures and fittings therein and additions thereto respectively in a good and tenantable state of repair […].”

By clause 3(d) the Lessee covenanted to repair “the whole of the Premises and all fixtures and fittings therein and additions thereto” but that obligation was then qualified so that it excluded liability to carry out any repair referred to in the Sixth Schedule.

The Lease also included a covenant by the Lessee, at clause 3(n), that he would not make any alteration, improvement or addition to the Premises.

Notwithstanding clause 3(n), at some point during the 1960s Mr Entwistle, the original Lessee of Flat 1, built a ground floor extension to Flat 1 at the rear of the building, with a flat roof. The area on which the extension was built was part of the garden included in the Premises demised by the Lease. There is no record of any formal consent for the extension, and it is not known whether, when it was built, the freehold reversion remained with Wessex Development Co Ltd or had already been transferred to the appellant.

It is known that by 1994 the freehold reversion to the Lease had become vested in the appellant, because it was party to the Deed of Variation of that year in the capacity of Landlord. The Deed recited that it was supplemental to the Lease and adopted the definition of the Premises in the Lease. It recorded the parties’ agreement “that the Lease shall be extended and varied in the manner hereinafter appearing and shall henceforth take effect and be read and construed as if the intended provisions had been contained in the Lease and that save as hereby modified the Lease shall be treated as continuing in full force and effect in all respects.” The “intended provisions” were then listed in a Schedule and comprised varying the duration of the term in clause 1 of the Lease to one of 125 years from 24 June 1993 and a small increase in ground rent.

The parties to the Deed of Variation did not take the opportunity to add a new plan to the Lease to show the ground floor extension, nor did they refer to the existence of the extension.