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To be able to develop the airspace above your property, you need to be sure that you still own the roof and airspace and that you have not let this out to your tenants.
Traditionally the legal position has been that, if the roof and airspace above the property is not expressly included within the lease, ownership remains with the landlord. However, recent case law may have turned this principle around.
This case concerned a block of flats and two blocks of garages, built in the 1960s and let on 999 year leases.
The landlord leased the flats and garages to the tenants. He then later leased the airspace above the flats and garages to a developer. The developer intended to build one flat on top of each of the garage blocks. However, the tenants objected on the basis that the landlord had leased the roof and airspace to them and therefore had no right to lease this to the developer. As such, the tenants argued that the developer had no right to develop the airspace.
The Judge considered several factors in reaching a decision including the length of the leases, the repair provisions relating to the garages, insurance responsibilities and the rent provisions. The tenants held 999 year leases at a peppercorn rent and were responsible for the repair and insurance of the garages. The roof and airspace were neither expressly included nor excluded by the leases.
The Judge held that, due to the fact the tenants held 999 year leases and were responsible for the repair of the garage, they would at some point in the future be required to access the roof to carryout these repairs (given they would inevitably not stand for 999 years). On this basis, the Judge held that the roof must have been intended to be included as part of the demise and that it followed from this that the airspace above was also included.
This means that the default position of who owns the roof and airspace may have changed. In particular, rather than the default being that the landlord retains ownership unless it is expressly a part of the demise, the tenant may now be deemed to own the roof and airspace unless it is expressly excluded from the demise.
Check your lease and seek legal advice from an experienced Commercial Property Solicitor who will be able to advise you on whether or not you have already leased the roof and airspace and whether or not you are able to develop this.
If you are granting a new lease, you should consider whether you wish for the airspace to be included in the demise or not. If you wish for it to be excluded, you will need to consider who will be responsible for the repair of the roof; what rights of access the tenant might need; and whether the tenant also wants rights to place equipment on the roof (aerials and dishes for example) and associated cabling and conduits. You should speak to an experienced Commercial Property Solicitor who will be able to discuss your options with you.
For further information relating to any of the points contained in this article, please contact Oliver Zaki on 01329 282 841.