Cellars included in lease but excluded from Land Registry - lessees entitlement?

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    Cellars included in lease but excluded from Land Registry - lessees entitlement?

    I own a leasehold basement flat in central London that has two cellars under the pavement, one is accessible only from inside my flat and the other is external and is accessible from the stairwell that is also used to enter my flat from the road i.e. technically the freeholder can access the external cellar from the road.

    The text from the lease states "...AND TOGETHER with any cellar under the pavement forming part of the property...". I have also attached the entire paragraph (schedule) from the lease.

    The freeholder is claiming that both cellars are not part of my basement flat's demise since they are excluded from the Land Registry title plan and therefore I can't use the external cellar exclusively and the freeholder is demanding access including breaking locks to gain entrance.

    We also attempted to get the freeholder to have the cellars added to the Land Registry title plan but was not interested... I guess doing so would make their argument invalid.

    I have a few questions:-

    1. Am I correct in my interpretation of the lease that both cellars are part of my demise? The lease doesn't differentiate between the cellars and uses the term "any" so it seems pretty clear to me.

    2. Does the old common law doctrine known as "medium filum" have any legal credibility in this situation?

    3. Does the fact the cellars are not on the Land Registry title plan void the part in the lease stating the cellars are part of my demise?

    4. Does the freeholder have a claim to the external cellar in the situation?

    5. Any other comments welcome.

    Thanks.









    #2
    I was unable to read the scan - I fortunatly the size of the upload is somewhat limited

    i suspect your property being in central London will be of some value and you really must take legal advice on this

    An observation I would make is that the freeholder could grant a lease of the cellars (and the land registry may well register it as it does not contradict any other lease plan) and this would complicate I am sure any claim you may have against either the freeholder or the solicitors who acted for you on the purchase (time limit there is six years)

    whilst I am sure others will post some insightful comments you must in view of the sums involved consult with solicitors able to deal with challenging the registration at the land registry and possibly taking action against your former solicitors

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      #3
      The scan of the lease became unreadable after uploading so here is the text from the lease regarding the cellars under the pavement.

      THE THIRD SCHEDULE above referred to
      FIRST ALL THAT flat forming part of the Property and being one of the Units known as Garden Flat ALL WHICH said Unit is delineated on the plan annexed hereto and thereon edged red TOGETHER with the ceilings and floors of the said Unit and including the interior plaster of the external walls and further the internal walls dividing the rooms of the said Unit and one half (severed vertically) of the internal walls of the said Unit dividing the said Unit from any other Unit or common parts of the Property AND TOGETHER with all water tanks sewers drains pipes ducts and conduits used solely for the purposes of the said Unit but no others AND TOGETHER with any cellar under the pavement forming part of the Property EXCEPT and RESERVING from the demise the main structural parts of the building of which the said Unit forms part including the roof gutters foundations external walls and external parts thereof but not the frames and glass of the windows of the said Unit

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        #4
        Does the plan to your lease show the cellars being edged in red ?

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          #5
          The red edged line runs along the edge of the pavement where the entrance to the cellars begin (boundary between the property and the pavement) but does not include the cellars. I guess that's why the lease deals with the cellars separately as the drawing (a very basic sketch) doesn't even show the cellars.

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            #6
            Are these pavement cellars, public air-raid shelters from WW2 ?

            I cannot see the cellars can be used for residential accommodation .

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              #7
              These are old coal cellars (vaults) where the coal was delivered through an opening in the pavement. These days the openings are closed off and the one cellar which is only accessible from inside my flat already forms part of my kitchen and the external cellar, that the freeholder claims is not part of my demise, houses my boiler, water softener, fire sprinkler system and is also used for storage.

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                #8
                Originally posted by sgclacy View Post
                Does the plan to your lease show the cellars being edged in red ?
                Not necessary as the lease clearly says they are included. As the lease clearly says they are included there is no way the landlord can argue they are not included.

                It would not surprise me if the cellars are not shown on the freehold title. That would not be unusual as the Land Registry does not usually show the ownership of highways. There is a rebuttable presumption that ownership extends to the midline of the highway. The highway authority owns the surface ("the top two spits") and the frontager the land below. If the cellars are not shown on the freehold title plan they will not be shown on the leasehold title plan.

                There are two possibilities:

                1. The freehold includes the cellars. If it does then they are included in the demise of the lease because the lease says so.

                2. The freehold does not include the cellar. If it does not the freeholder cannot have a better title to them than the leaseholder.

                To the above can be added the observation that if the cellars are not shown included on the title plan of the freehold, the freeholder can hardly argue that they are not included in the leasehold title because they are not shown on the leasehold title plan.

                I suggest that uzj6c writes to the Land Registry and asks them to show the cellars on the title plan, or, if that is not possible, to note in the property register of his leasehold title that the cellars are included.

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                  #9
                  The old coal cellars under the pavement were a vital part of the heating system of old london houses. I used to live in one. It was a leasehold and it was our coal cellar the coal was delivered through the round hole in the pavement and we did ourbit to add to the great smogs in the 1950 s.

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                    #10
                    Thanks for all the replies and especially Lawcruncher for your suggestions. On that note I have purchased a copy of the title from the Land Registry for my basement flat and it appears there may already be some text that covers the cellars albeit not explicitly, so I would appreciate any clarification and if my assumptions are correct.

                    Below are the relevant paragraphs from the title for my basement flat.

                    A: Property Register

                    This register describes the land and estate comprised in the title. Except as mentioned below, the title includes any legal easements granted by the registered lease but is subject to any rights that it reserves, so far as those easements and rights exist and benefit or affect the registered land.

                    5. Unless otherwise mentioned the title includes any legal easements granted by the registered lease(s) but is subject to any rights that it reserves, so far as those easements and rights exist and benefit or affect the registered land.

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                      #11
                      The words you quote are of no relevance here. The lease expressly includes the cellars. You cannot have an easement over land included in the lease.

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                        #12
                        Is the "pavement" part of the outside road belonging to local council ?

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                          #13
                          I would expect historic lease to include coal cellars with the house as that was the heating system. Subsequent lesses may have changed this but would need to be explicit about which flat got what. Do any other flats have claims on the cellar?

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                            #14
                            "The words you quote are of no relevance here. The lease expressly includes the cellars. You cannot have an easement over land included in the lease."
                            Okay thanks, that makes sense.

                            "Is the "pavement" part of the outside road belonging to local council ?"
                            Yes... and the cellars are under the pavement.

                            "I would expect historic lease to include coal cellars with the house as that was the heating system. Subsequent lesses may have changed this but would need to be explicit about which flat got what. Do any other flats have claims on the cellar?"
                            There are only two properties concerned made up of the basement flat that I own and the remaining levels of the building above the basement flat that the freeholder owns. The lease for the basement flat explicitly states any cellar under the pavement belongs to the basement flat, as shown above in a previous post. To reiterate the freeholder is arguing the cellars don't belong exclusively to the basement flat because they are not included in the title at the Land Registry for the freehold nor the leasehold.

                            It's also just occurred to me that the external cellar, which is the one the freeholder wants access to, is only accessible from my demise i.e. the small outdoor landing area below pavement level to access my front door and also the external cellar. This area is clearly shown on the Land Registry title and also the lease to be part of my demise and there are no easements granted to the freeholder to access this area in the lease for daily use. I would think the freeholder can hardly ague to want access to the external cellar but to access it they would be trespassing?

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                              #15
                              I would think the freeholder can hardly ague to want access to the external cellar but to access it they would be trespassing?
                              Correct, but the fact that the lease clearly and unequivocally includes the cellar trumps that.

                              Unless otherwise indicated (which would be very unusual) any conveyancing plan, including a Land Registry title plan, serves only to identify the property, not establish its precise boundaries. Leases often provide some detail as to what is and what is not included, for example: external walls, roofs, roof spaces, balconies, roof terraces, external staircases and indeed cellars. The details are not always shown on the Land Registry plan or set out in the description of the property in the property register. However, the lease is part of the title and can be referred to see if it is more precise than the description in the property register or the title plan. If it is, the lease prevails.

                              Follow the advice in the last paragraph of post 8 without delay. You have nothing to lose.

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