Ignore or study the plan?

A lease will almost invariably have a plan annexed to it with what purports to be the demise marked, usually in red, upon it.  The plan is often inaccurate and may simply be a copy of a plan annexed to an earlier lease.  In which case, when does one take note of what the plan attempts to say?

The lease will usually refer to the plan either stating that it is ‘for identification purposes only’ in which case, generally speaking, the plans will not add to or amend the wording of the lease and the wording will prevail.  Alternatively, the lease may state that the demised premises are ‘further or better described on the plans annexed hereto’ in which case the plans and the information contained upon them are crucial in working out what is or is not included in the demise.

In two recently reported cases (concerning service charges) the Tribunal had to determine whether or not meter cupboards were within the demise (Buttermere Court Freehold Ltd v Goldstrom and Blair Court Freehold Ltd v Parissis [2019] UKUT 225 LC).  On appeal, the Upper Tribunal said “The meter cupboards are outside each flat and adjacent to the internal front door of each; the tenant holds the key.  They contain, obviously, electricity and gas meters.  They are not mentioned in the leases, but they are within the red edging on the lease plans.  On that basis, the respondents argued that they are within the demise.” The Lower Tribunal had not agreed saying the plan may not be accurate (although there appears no reasoning behind this comment), that wires in the cupboard served other parts of the building and were maintained by the landlord; that the cupboards were never intended to be habitable space and that if part of the demise, the landlord would potentially have difficulty in taking enforcement action against the tenant if the meters fell into disrepair.  The tenants appealed.

The appeal was allowed.  The Upper Tribunal said its task was to determine the demise from what a lease, including any plans, stated.  Only if a lease is ambiguous is it permissible to refer to other evidence.  Whilst, in this case, the lease did not refer to the cupboards (any more than it referred to other parts of the demise e.g. the kitchen or bedroom), they are unambiguously within the red edging on the plan:  “It is difficult to see why there is any need to go further.

If you wish to hear more about determining the demise, why not speak to Hatherleigh Training?

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