Q&As

A window frame of a flat overhangs the balcony of the flat below. Does this overhang constitute trespass?

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Produced in partnership with Desmond Kilcoyne
Published on LexisPSL on 06/09/2016

The following Property Q&A Produced in partnership with Desmond Kilcoyne provides comprehensive and up to date legal information covering:

  • A window frame of a flat overhangs the balcony of the flat below. Does this overhang constitute trespass?
  • The air space above and the soil below
  • Exceptions and reservations clause
  • Easements

The answer depends on when the window frame was installed. If it is an original feature, or an exact replacement of an original feature, the answer is no, there is no trespass. By contrast, if the window is new, the answer may be different.

To begin with, the question concerns a block of flats, split up horizontally with leasehold title being granted to the flat on each floor. Where the window is an original feature, or an exact replacement of an original feature, the following points are likely to support lawful use of the window.

The air space above and the soil below

In Lejonvarn v Cromwell Mansions Management Company Ltd, the High Court observed that the legal presumption that a conveyance of land carries with it the air space above and the soil below cannot be applied generally in the case of leases and must depend on looking at the particular circumstances of the lease within the context of the whole property from which that leasehold has been carved out.

Similarly, in H Waites Ltd v Hambledon Court

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