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A typical long lease requires L to maintain the ‘main structure’. In Toff [1993]
it was held that this did not extend to the floor between two flats. However,
every case obviously depends upon its own facts and the wording of the
individual lease. A recent case illustrates a more modern approach.
The dispute in the recent case involved a maisonette, with a timber floor
between the ground and first floor of the flat (ie the floor was internal to that
maisonette – as opposed to being a floor between two different flats). Was this
part of the ‘main structure’? L argued that ‘main structure’ should be limited to
items in the ownership and control of L, or alternatively items that served more
than one flat. But, the CA doubted whether any structure could in fact ‘serve’
only one unit. It adopted the approach in Irvine [1991] where it was said:
‘The structure of the dwelling house consists of those elements of the overall
dwelling house which give it its essential appearance, stability and shape. I am
not persuaded… that one should limit the expression ‘the structure of the
dwelling house’ to those aspects of the dwelling house which are load-bearing…
but in order to be part of the structure of the dwelling house a particular element
must be a material or significant element in the overall construction.’
On this test, the floor was part of the ‘structure’, with the court then going
on to say it was also part of the ‘main structure’ (since the joists kept the
whole building stable and provided support for the walls). Thus, the fact that
the floor was internal to the maisonette did not prevent it being part of the
‘main structure’. Marlborough Park v Rowe [2006] EWCA Civ 436. Source:
www.practicallaw.com/8-202-3538.
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October 2006 |
