In the case in question, Mr and Mrs Gorst wished to extend their leasehold property by developing the small cellar to their ground floor flat. This required them to dig down into the subsoil by about 4ft. They sought permission from the freeholder which was refused on the grounds that the subsoil was not demised with the lease and such works would amount to trespass. The freeholder went to Court for a declaration to this effect.
The Court agreed. At first instance the High Court Master found in favour of the freeholder. The leaseholders appealed but on appeal the decision was upheld – the Court finding that the lease does not extend to the subsoil.
With basement developments more in vogue now than ever, this will be a disappointing case for leaseholders who would like to add extra living space.
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