What constitutes ‘common parts’ upon enfranchisement?

3 December, 2019

In a case decided by the Upper Tribunal (UT) (and which is the subject of an appeal to the Court of Appeal), a group of participating tenants in a building called Queen Court made a collective claim to buy the freehold and as part of that claim sought also to acquire three leases which had been granted by the then landlord comprising areas within the basement, unexcavated sub soil beneath the building and airspace.

Did these constitute common parts to enable the tenants to acquire an interest in them?

The Leasehold Reform, Housing and Urban Development Act 1993 provides for the tenants to acquire the interest of another tenant under any lease which demises common parts if these areas are reasonably necessary for the proper management or maintenance of the building.  Common parts are defined in the 1993 Act as including the structure and exterior of the building and any common facilities within it.

The UT interpreted common parts to include those parts of the building which had some shared use or benefit, consideration being given to the purpose or function of those areas.  The basement included services which were used for the benefit of the building and thus fell within the definition of common part.  The sub soil and air space were also decided to be common parts as being part of the exterior of the building.

The intention of the holder of the common part lease as to what it plans to do with it was relevant in deciding whether the participants needed to acquire the space for the proper management or maintenance of the building.  An intention to develop the area in question would result in the loss of the space and its ceasing to be common parts and so the UT decided it was necessary for the tenants to acquire such a lease.