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Digging Down into the Subsoil Presumption

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Summary: Court holds that the lease of a ground floor maisonette did not include the subsoil beneath it.

There is an oft-held presumption that a freeholder owns all the air to the sky and all the soil to the centre of the earth (except where there are exclusions to the contrary).  Whether the presumption can be applied to leasehold land has always been a matter of debate.

The court in this recent case distinguished airspace and subsoil  from each other in assessing the applicability of the presumption.  Whilst the presumption can be readily applied to airspace in a leasehold context, it was held express words are needed for subsoil to be included within a demise.

Accurate drafting to define the extent of the demise should narrow the scope for future disagreements between landlords and tenants.

Background

The owner of the long lease of the ground floor and cellar flat (Gorst) in a three storey house sought a declaration from the court that the demise extended to the subsoil beneath the house. Gorst wanted to convert the cellar into a habitable room. To do so Gorst needed to increase the ceiling height by an extra 4ft which could only be achieved by excavating. The local authority granted Gorst planning permission.

The owner of the other flat in the house (also the freehold owner) (Knight) opposed the works. The court was therefore required to determine whether the area demised by Gorst’s lease extended to the subsoil or whether the carrying out of the works would amount to a trespass against the freeholder.

General Presumption

The general principle of English law is that land ownership includes all of the airspace above it and extends to everything below it unless there have been express reservations (for example mines and minerals).

Previous case law has determined that for the presumption to be of any application there must be an interference with the property owner’s rights. This is why a homeowner is unable to bring a claim of trespass for a plane flying thousands of feet above its house.

In Gorst there was no dispute as to the freeholder’s ownership of the subsoil at the levels Gorst wished to encroach as there had been no exclusions from it. The issue was whether the demise under the lease included the subsoil.

Application of the presumption to a lease demise

Airspace

If the wording of a demise is expressed by reference to a vertical division, and there is no wording to express a horizontal division (for example by reference to a particular floor and an upper and lower limit or if the freeholder retained the structure), then there is no reason to suggest that a freeholder would not have intended to demise the airspace above a building.

Subsoil

The has court viewed the application of the presumption to subsoil differently for the following reasons:

  1. The subsoil is key to the stability of the entire building. If the foundations become unstable then the whole building is threatened;
  2. Access to subsoil is more difficult than accessing above the building; and
  3. Subsoil is not visible so any problems cannot be ascertained so easily.

The presumption is relevant in construing what the freeholder can demise. However, the court held that the presumption was not appropriate to apply in all cases to the interpretation of a lease demise; it needs to be considered in the context of the express wording of demise (and other relevant covenants in the lease).

The wording in Gorst’s Lease

The express words of demise included the ground floor of the building, together with the cellars and foundations.

The lease reserved rights to the landlord for services running under the demised premises. This made it clear that there was a lower limit to the demise and therefore the subsoil should not be included.

The court also took into account the context of the original lease grant. The lease was originally granted in 1992 and then regranted in 2016. In 1992 extensions by digging into subsoil were not unknown but clearly less common than they are now.  No express wording relating to the subsoil was included.

These factors, together:

  • the lack of an express stipulation;
  • the wider context of the grant of the lease in 1992; and
  • other covenants in the lease;

 resulted in the ruling that the subsoil was not included in the demise.

Conclusions

  • Well drawn leases should express the extent of the demise clearly, and not rely on presumptions when it comes to including subsoil;
  • The general presumption may apply to the inclusion of airspace if the demise is defined by reference to a vertical limit, however it would still be best to expressly include all of airspace above demised premises;
  • Landlords equally should seek precise drafting of demises such that tenants do not seek to rely on the presumption to claim airspace or subsoil; and
  • The correct context for determining the parties intentions where a lease has been extended is the date of the original grant rather than the lease extension.

Case:  Gorst & Anor v Knight [2018] EWHC 613 (Ch)

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