Wellington Properties Ltd v Second Duke of Westminster, Trustees of the Will of & Anor, Court of Appeal - Chancery Division, November 13, 2018, [2018] EWHC 3048 (Ch)

Resolution Date:November 13, 2018
Issuing Organization:Chancery Division
Actores:Wellington Properties Ltd v Second Duke of Westminster, Trustees of the Will of & Anor
 
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Neutral Citation Number: [2018] EWHC 3048 (Ch)

Case No: CH-2018-000083

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS

CHANCERY APPEALS LIST (CHANCERY DIVISION)

Rolls Building

Fetter Lane, London, EC4A 1NL

Date: 13 November 2018

Before :

MR JUSTICE ARNOLD

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Between :

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Nicholas Isaac (instructed by Child & Child) for the Claimant.

Jonathan Gaunt QC (instructed by Boodle Hatfield LLP) for the Defendants

Hearing date: 7 November 2018

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MR JUSTICE ARNOLD :

Introduction

  1. This is an appeal by the Defendants (``Grosvenor'') against an order of His Honour Judge Bailey sitting in the County Court at Central London dated 8 December 2017 declaring that the flank wall of 39 Headfort Place, London SW1X 7DE (``39HP'') which adjoins the Halkin Street Garden (``the Garden'') is a party wall within the meaning of section 38(1) of the Law of Property Act 1925 and of section 20 of the Party Wall etc Act 1996. The issue on the appeal is whether the judge was right to make those declarations on the true construction of a transfer dated 25 April 1990 whereby Grosvenor transferred 39HP to Lady Anthea Peronelle Rees (``the Transfer''), and in particular clause 3(b) of the Transfer. The Claimant (``Wellington'') is Lady Rees' successor in title.

    39HP

  2. 39 HP is on the south-west side of Headfort Place. Its main elevation faces roughly north-east across that street. Adjoining 39HP to the north-west lies No. 1 Halkin Street. No. 1 Halkin Street is a corner property. Its main façade faces north-west onto Halkin Street. To the south-west it abuts No. 2 Halkin Street, the north-eastern wall of which also abuts 39HP.

    The Garden Wall

  3. The wall in question is the south-east wall of 39HP (``the Garden Wall''). The Garden Wall does not abut any building, but adjoins the Garden, a communal garden which lies at the rear of the Halkin Street properties. The Garden Wall includes a small window at ground floor level providing light to the basement, a two-storey bay window, French doors leading to the Garden and further windows at second and third floor levels.

    The statutory provisions

  4. Section 38(1) of the Law of Property Act 1925 provides:

    ``Where under a disposition or other arrangement which, if a holding in undivided shares had been permissible, would have created a tenancy in common, a wall or other structure is or is expressed to be made a party wall structure, that structure shall be and remain severed vertically as between the respective owners, and the owner of each part shall have such rights to support and user over the rest of the structure as may be requisite for conferring rights corresponding to those which would have subsisted if a valid tenancy in common had been created.''

  5. Section 20 of the Party Wall etc Act 1996 defines a ``party wall'' as:

    ``(a) a wall which forms part of a building and stands on lands of different owners to a greater extent than the projection of any artificially formed support on which the wall stands; and

    (b) so much of a wall not being a wall referred to in paragraph (a) above as separates buildings belonging to different owners.''

    The background to the Transfer

  6. Prior to the Transfer, Lady Rees was the tenant of 39HP under a lease dated 19 June 1979 which demised 39HP to her from 25 December 1977 until 29 September 2051 (``the Lease''). The Lease was enfranchiseable pursuant to the Leasehold Reform Act 1967.

  7. The demise was of:

    ``... all that piece of land situate on the South West side of Headfort Place Grosvenor Place in the City of Westminster Greater London which said piece of land with the dimensions thereof (be the same little more or less) is delineated and coloured in the plan annexed hereto Together with the messuage and buildings erected thereon and now known as number 39 Headfort Place ...''.

  8. The annexed plan shows the dimensions of 39HP in feet and inches. It also indicates in a schematic manner the locations relative to 39HP of No. 1 Halkin Street, the Halkin Street Garden and Headfort Place.

  9. It is common ground that the Garden Wall was part of the property demised.

  10. The Lease contained in clause 2(III) a tenant's covenant to repair the whole of the demised premises and as to the exterior to paint the whole of the outside woodwork, ironwork, metalwork, cement, stuccowork and other external parts and to repoint the external brickwork of the demised premises if called upon to do so.

  11. In 1990 Lady Rees exercised her entitlement pursuant to the Leasehold Reform Act 1967 to acquire the freehold of the house demised to her.

    The Transfer

  12. By the Transfer Grosvenor transferred the freehold and superior leasehold...

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