Until the early part of 2011 there was something of a debate as to whether the enfranchising tenants in a collective claim could seek to acquire part of a leasehold interest that might have comprised appurtenant property or a common part of their building.

Earlier authority on this point Kintyre Limited v Romeoarch Property Management Limited [2006] 1 EGL makes plain that where an area is necessary for the proper maintainance and repair of the property that this will be capable of acquisition in accordance with the test in the statute.

However the Hemphurst case confirms that it is possible for the enfranchising tenants to acquire part only of such a leasehold interest.

The case of Hemphurst Limited v Durrels House Limited [2011] UKUT 6 (LC) LRA/27/2009 provides some clarity regarding the acquisition of ‘common’ areas that are held under a lease and liable to acquisition under Section 2(3)(a) and (b).

In this case the nominee purchaser sought to acquire part only of a lease that comprised amongst other things the roof area and which was demised on terms that would permit the landlord to carry out significant further development.

Section 2(2) permits the acquisition of leasehold interests that are either common parts, or appurtenant property where the interest in question needs to be acquired because it is reasonably necessary for the proper management or maintenance of those areas.

The Hemphurst case establishes the principle that the nominee purchaser can acquire part only of a lease of other parts of the building that demised common parts. The landlords having argued unsuccessfully that Section 2 would require the purchase of the whole of the landlord’s interest under that lease ((The case of Kintyre Limited v Romeoarch Property Management Limited [2006] 1 EGLR held that a lease of the surface of a flat roof and the airspace above it was property liable to acquisition under Section 2(1) (b). )).

Mark Chick

7 October 2011

This note (being very general in its nature) is not a complete statement of the law in this area.  It is therefore not a substitute for legal advice from a suitably qualified professional and should not be relied upon as such. No liability can therefore be accepted for any actions based on reliance upon it.

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