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

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  • Lawcruncher
    replied
    Originally posted by uzj6c View Post
    Section20z, are you suggesting that because the lease states "any cellar" as apposed to "any cellars" that this implies only one cellar (see post 10)? That doesn't seem correct and would create ambiguity as the lease doesn't distinguish between the two cellars and both are accessible only from my demise? For only one of the two cellars to be part of my demise surely the lease would need to be more explicit and state as such, and also indicate which cellar.
    I agree. "Any" means "one or some of a thing or number of things".

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  • uzj6c
    replied
    Thanks Lawcruncher for your latest reply, proceeding on that basis makes sense.

    Section20z, are you suggesting that because the lease states "any cellar" as apposed to "any cellars" that this implies only one cellar (see post 10)? That doesn't seem correct and would create ambiguity as the lease doesn't distinguish between the two cellars and both are accessible only from my demise? For only one of the two cellars to be part of my demise surely the lease would need to be more explicit and state as such, and also indicate which cellar.

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  • Section20z
    replied
    Originally posted by Codger View Post
    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?
    I'd say the lease is fairly explicit and as a freeholder I would be saying the same as the OP's landlord. The lease clearly refers to one cellar (singular) and is referring to the one that is part of the property, the other cellar is patently not included but looks to have been used by flat owners over time.
    I would suggest you follow the advice given in post #2 and instruct a lawyer competent in this field

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  • Lawcruncher
    replied
    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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  • uzj6c
    replied
    "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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  • Codger
    replied
    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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  • Gordon999
    replied
    Is the "pavement" part of the outside road belonging to local council ?

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  • Lawcruncher
    replied
    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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  • uzj6c
    replied
    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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  • Codger
    replied
    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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  • Lawcruncher
    replied
    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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  • uzj6c
    replied
    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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  • Gordon999
    replied
    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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  • uzj6c
    replied
    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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  • sgclacy
    replied
    Does the plan to your lease show the cellars being edged in red ?

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