Summary

The claimant was entitled to acquire the freehold of two mews houses which together constituted a house reasonably so called and which were not divided vertically within s.2(1)(b) Leasehold Reform Act 1967.

Facts

Appeal by the freeholder ('HDW') from the judgment of HHJ Hallgarten granting a long leaseholder ('C') a declaration that she was entitled to acquire the freehold of Nos.11 and 12 Devonshire Mews South, London W1 from HDW under the Leasehold Reform Act 1967. Prior to 1976, Nos.11 and 12 were separate with No.11 consisting of a garage and living accommodation on the ground floor and living accommodation on the first floor. No.12 had garages on the ground floor with a flat above. In 1977, a communicating door was made through the party wall giving access from the patio of No.11 to a utility room at the back of the ground floor in No.12 and from there to the garages in No.12. C owned the headlease of Nos.11 and 12 granted by HDW which required the premises to be used as a single private dwelling house but permitted the flat on the first floor of No.12 to be sublet, as it was by a 1983 underlease. HDW disputed C's right to acquire the freehold arguing that Nos.11 and 12 did not together constitute a dwelling house within s.1 of the 1967 Act. HDW's case was that Nos.11 and 12 were two houses; alternatively that the property was divided vertically and hence excluded by s.2(1)(b) of the 1967 Act. The judge held that they were one house. HDW appealed.

Held

(1) The judge was entitled to find that No.11 and 12 together were a house within the meaning of s.2(1) of the 1967 Act (Malekshad v Howard de Walden Estates Ltd (2002) 3 WLR 1881 considered). (2) Nos.11 and 12 were not divided vertically in the manner contemplated by s.2(1)(b)of the 1967 Act. There was no vertical division down the party wall because the utility room and garage of No.12 were part of No.11 both in practice and by design of both parties. The division contemplated in s.2(1)(b) of the 1967 Act produced units not parts of units. That was the basis of the reasoning in Malekshad (supra).

Appeal dismissed.