The following Property practice note provides comprehensive and up to date legal information covering:
In the absence of an express provision in the lease (which is rare), a landlord has an absolute right to refuse consent to alterations outside the demise.
When defining the demise, to avoid uncertainty specify any areas (eg airspace or structural parts) that are excluded.
In H Waites, the High Court summarised the case law on demised premises and airspace, though clearly best practice is to be as clear as possible in the lease to avoid argument and litigation.
In Kelsen, the landlord demised a single storey shop for a term of 7 years. The parcels clause in the lease described the demised premises as ‘All that shop with the rooms and cellars (if any) attached’. The tenant claimed the demise included the airspace above the single storey shop so he could assert an advertising hoarding placed in that airspace was a trespass. The claim succeeded. The court rejected the landlord’s argument that there was a difference between a demise which referred to a parcel of land with a building erected on it and a demise of a building. In the former case, the landlord argued the demise included the airspace above the land, but in the latter case it did not. Prima facie a lease of land included the airspace above the land and a lease of a single
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