In Yeung v Potel & Anor [2014] a four-storey property at 50 Warwick Gardens, London W14 was divided into four flats, each one being above the other.
The Flat 3 occupier carried out building works which caused damage to Flat 4 and nuisance to its occupants. He did not give notice to the claimants of what he was proposing to do. Nor did he serve any Party Wall Act notice on the claimants.
In the County Court damages were assessed at £87,627.05. This figure included £4,000 general damages and £12,850 VAT, due on the remedial costs.
The principal issues before the Court of Appeal were
whether the occupant of Flat 3 had a right of access to Flat 4 to facilitate the proposed moving of a gas pipe and gas meter.
National Grid PLC was willing to do the work, but would need temporarily to shut off the gas supply in Flat 4 for that purpose.
In Flat 3 there was a ceiling attached to joists. Above that there was a gap and then a separate set of joists, which supported the floor of Flat 4. On the underside of the floor joists there was, or had been, a lath and plaster ceiling.
Clause 1 of the Flat 3 and 4 leases defined the flats as including the ceilings and floor of and in the flat the joists or beams on which those floors were laid but not the joists or beams to which those ceilings were attached.
In fact Flat 3’s ceiling had been raised so the defendant’s let was extended no further than up to the ceiling which existed from 1964 until 2008.
So by removing that ceiling and installing a new ceiling at a higher level the defendant had already trespassed on the claimants’ property or on property retained by the Landlord.
Flat 3’s owner was wanting to lay the pipes within what used to be the void between Flat 4’s floor joists and Flat 3’s previous ceiling.
The defendant had, in effect, carried out a “land grab” by raising the ceiling of his flat.
There would be no objection to the defendant re-routing the gas pipe within his own let. Whether he could do so outside that depended what rights he benefited from granted by his own lease and what reservations he benefited from under other flat leases.
Schedule 1 to the leases included rights in the leases. These included:
4. The right to use the service pipes and wire which now are or may at any time hereafter be in under or passing through the remainder Building or any part of the Building.
5. The right to enter upon other parts of the Building usually on notice for the purpose of maintaining or renewing and of laying down service pipes and wires causing as little disturbance as possible and making good any damage caused.
In respect of each flat Schedule 2 to the leases reserved corresponding rights in favour of the rest of the Building. Except that the right of entry only extended to “renewing” sewers, drains, watercourses, cables, pipes and wires, it did not include “for the purpose of…laying down any new sewers drains and watercourses cables pipes and wires”.
E.g. computer cables different from and additional to the electric wires already in a property would not be replacements for those electric wires.
The question therefore arose whether there should be implied into the reservations clause the additional words “or laying new”. But if the parties had considered that the reservations clause had been insufficiently wide, they could and should have amended it by means of the general updating deed of variation they had entered into a few years earlier.
The court interpreted the reservations clause to mean either (a) the lessor or (b) the lessees of other flats could enter Flat 3 or Flat 4 for:
i) Repairing, cleaning or maintaining sewers, drains, watercourses, cables, pipes and wires.
ii) Renewing sewers, drains, watercourses, cables, pipes and wires.
In that context “renewing” pipes or wires meant substituting new pipes or wires as replacements for the pre-existing ones. It did not extend to laying new and additional pipes or wires of a different character from the pre-existing ones.
Re-routing a gas pipe so that it lay within an area outside the let flat was not authorised by the rights or reservations in the leases.
This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.
Original article: Flat owner had no right to lay new pipes outside its leased property.