Having looked last month at basement extensions, the “other side of the coin” for the above legal expression (“cuius est solum eius est usque ed coelum et ad inferos” - a conveyance of land includes the surface and everything below it as well as the airspace above) is that – subject to any limitations imposed in the Lease – the lease of the top floor (and roof space) of a vertically divided building includes the airspace above the building “up to the heavens.” (This is, of course, subject to limitations more recently imposed by the needs of passing aeroplanes and in due course, one would presume, passing Amazon delivery drones.)
This has led to the phenomenon of “airspace developments” with specialist companies – such as Apex Housing Solutions – depositing what are effectively prefabricated units onto the rooves of blocks of flats in urban areas and adding an additional floor (or two floors) to those buildings.
What, then, can existing Tenants (who are usually disgruntled) and, indeed, the Landlord do to stop this and/or alleviate their concerns about increased pressure on services (stairwells, sewage pipes etc) and any effects on the structure of the building itself?
For a development of this type planning permission is, of course, required and in the past proposals were likely to have been kept in check by the planning system. More recently however, with increasing pressure on Local Authorities to deliver housing – particularly in already crowded urban areas, permission has become more likely to be given.
Development is, of course, still constrained by other legal issues – such as rights to light etc and the requirement not to interfere with rights granted to existing Tenants – but, more and more, the exercise is one of “damage limitation” (rather than being able to prevent).
It is important to ensure that adequate arrangements are proposed for practical issues such as waste disposal and bicycle storage. In this regard active involvement at the planning stage may be helpful (for example making sure that areas proposed as bin storage areas for the new accommodation are actually within land which the developer is able to deliver).
More importantly for Landlords it is important to ensure that the demise in any Lease of top-floor premises (or any Lease which includes top-floor premises) is appropriately limited.
Looking at matters from the other side: for Landlords seeking to realise value of currently unused rooftop areas, it is essential to ensure that any Lease created (explicitly with a view to airspace development) contains appropriate provision as to how and where the new structure will be connected to the existing building, rights of support and services passing through the existing building. In this regard advice from competent professionals is essential.
And, of course, don’t forget to exclude the airspace above from the new structure from any Lease created or you may (whether immediately or eventually) end up with more floors on the building than you were expecting.