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Julian Wilkins Architectural Plans

The earth beneath your feet

In a recent legal case the issue of whether or not the owner of a ground floor flat actually owns the soil underneath the flat has come under close scrutiny.

For freehold properties, typically houses, the answer in the UK is relatively simple.   The owner of a freehold property owns everything from the centre of the earth up to the “lower stratum” which is not well defined but is somewhere between 500ft (150 metres) to 1,000ft (300 metres) above ground level.   There is an issue with mineral rights, where the Crown has rights over any gas, coal, oil, silver, or gold found on both public and private property.   For leasehold properties which include flats together with some houses and bungalows, it really depends on the terms of the lease.

In the case of Gorst v Knight [2018] EWHC 613, the owner of a ground floor flat with a cellar that had restricted head height obtained planning permission to extend the property by excavating the basement to create additional habitable living space.

Unfortunately, the terms of the lease, whilst not stating specifically that the leaseholder did not have the right to excavate, meant that the owner of the flat did not have an automatic right to dig down in such a fashion.   At the same time, the lease appeared to state that the actual soil belonged to the freeholder.   In fact, not only did the leaseholder need permission from their freeholder, but they would have had to buy the land underneath the building.

It is often the case that top floor flats, where they wish to extend into the loft have a similar problem as not only will they be making major alterations, but the freeholder often retains ownership of the loft space.   There may be either explicit or implicit terms within a lease that either prohibit or limit any alterations.   Sometimes there are provisions within the lease that allow for development of the property as long as there is detailed consultation with the freeholder.

This means that flat owners must not just presume that they own the ground under their feet or the loft above their heads and even if they do, they do not have an automatic right to develop it as they want, even if they can get planning permission. Flat owners may also require consent from the freeholder.

It also makes a difference when leaseholders want to enfranchise the freehold of their building.   If there is development potential to either the loft or the basement then this must be taken into consideration when calculating the premium to be paid for the freehold.

Certainly, flat owners need to be careful when approaching their freeholder for their permission to extend.   If the freeholder refuses and the leaseholders later decide to collectively enfranchise the freehold of the building, then the freeholder will know about the intention to extend and this will no doubt increase the premium payable.

If you own a leasehold property in Sussex, Surrey and Hampshire including Worthing, Shoreham, Brighton, Hove, Goring, Ferring, Chichester, Bognor Regis and Horsham then you might need a valuation if you are considering either a loft conversion, a basement extension, the enfranchisement of your freehold or a lease extension.

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