Cadogan & Anor v McGirk, England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

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Attorney(S)

MR A RADEVSKY (Instructed by Messrs Lef Pembertons, London SW1X UBX) appeared on behalf of the Appellant
MR J MALE (Instructed by Messrs Bird & Bird, London EC4A 1JP) appeared on behalf of the Respondent

Judges

LORD JUSTICE MILLETT
LORD JUSTICE THORPE
LORD JUSTICE WAITE

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Cadogan & Anor v. McGirk

Smart Summary

Factual and Procedural Background

The appeal concerns whether an attic box storeroom on the sixth floor of a mansion block of flats forms part of the second floor flat to which it has been allocated. The Respondent, tenant of the second floor flat and the storeroom under separate agreements, seeks inclusion of the storeroom in a new lease under the Leasehold Reform, Housing and Urban Development Act 1993 ("the Act"). The Appellants, freehold owners of the building, dispute this entitlement. The Respondent served a notice exercising the right to a new lease including the storeroom. The Appellants initiated proceedings for a declaration that the storeroom should be excluded. The County Court Judge held the storeroom was an "appurtenance" of the flat under Section 62(2) of the Act and dismissed the Appellants' application. The Appellants appeal this decision.

Legal Issues Presented

Whether the attic box storeroom forms part of the second floor flat under the definition of "flat" in Section 101(1) of the Act.
Whether the storeroom qualifies as an "outhouse" within the meaning of Section 62(2) of the Act.
Whether the storeroom constitutes an "appurtenance" of the flat within Section 62(2) of the Act, entitling its inclusion in the new lease.

Arguments of the Parties

Appellants' Arguments

The storeroom is not part of the flat as it is physically separate and lacks a natural or physical relationship with the flat.
The storeroom is not an "appurtenance" because it is not within the curtilage of the flat and would not pass under an assignment of the flat without express mention, relying on precedent from the 1967 Act.
The storeroom cannot be an "outhouse" as it is located within the building and not outside or adjoining the principal building.

Respondent's Arguments

The storeroom, though separate, is allocated and let with the flat and used in connection with it.
The storeroom qualifies as an "appurtenance" or alternatively as an "outhouse" under the Act.
The storeroom should be included in the new lease as it is let with the flat and enjoyed as part of the tenant's premises.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Methuen-Campbell v Walters [1979] QB 525	Interpretation of "appurtenances" in leasehold enfranchisement context; historical meaning and evolution.	The court relied on this precedent to trace the changing meaning of "appurtenance" and to reject a narrow, strict construction excluding land or separate physical units.
Jones v Wrotham Park Settled Estates [1980] AC 74	Statutory construction of expropriatory legislation; minimal force to strict construction.	The court adopted the view that the Act should be construed fairly and effectively to confer tenant advantages, not strictly against expropriation.
Manson v Duke of Westminster [1981] QB 323	Weight of expropriatory nature in statutory interpretation.	The court agreed that the expropriatory nature of the Act has little weight in construing its provisions.
Barras v Aberdeen Steam Trawling and Fishing Co. Ltd. [1933] AC 402	Principle that words with judicial interpretation in earlier statutes should be given the same meaning in later statutes with similar context.	The court applied this principle to the term "appurtenances" but recognized the changed statutory context required some adaptation.
Trim v Sturminster Rural District Council [1938] 2 KB 508	Definition of "appurtenances" excluding land outside curtilage of the house.	The court considered this authority but found it less applicable given the different context of flats versus houses.
Buszard v Capel (1828), 8 B. & C. 141	Historical limitation of "appurtenances" to incorporeal hereditaments, excluding land.	The court acknowledged the historical background but recognized evolution in meaning relevant to the case.
Evans v Angell (1858), 26 Beav. 202	Definition that appurtenances include anything passing under conveyance of principal subject without express mention.	Used to demonstrate the broader modern meaning of appurtenances including land within curtilage.

Court's Reasoning and Analysis

The court first examined whether the storeroom forms part of the flat under the statutory definition in Section 101(1). It concluded that the storeroom is a separate physical unit lacking the natural or physical connection necessary to be part of the same "separate set of premises," despite being let with the flat under separate agreements. The presence of separate leases does not preclude parts of the same flat being separately demised, but here two distinct physical units are involved.

Next, the court considered whether the storeroom qualifies as an "outhouse" under Section 62(2). The court rejected this, holding that an outhouse must be outside the main building, such as a separate outbuilding, and a room within the same building cannot properly be described as an outhouse.

Finally, the court analyzed whether the storeroom is an "appurtenance" of the flat. It traced the evolving legal meaning of "appurtenance," noting the shift from a narrow technical term excluding land to a broader concept including land and buildings within the curtilage of the principal premises. The court emphasized the changed statutory context of flats in mansion blocks as opposed to houses with their own curtilage. It concluded that the storeroom, though not within the flat's curtilage, is within the curtilage of the building and is let with and usually enjoyed with the flat, thus qualifying as an appurtenance. The court reasoned that excluding such storerooms would produce an absurd result, inconsistent with the purpose of the Act to confer rights on tenants.

The court also considered the interplay between individual leasehold enfranchisement rights under Chapter II and collective enfranchisement rights under Chapter I, supporting a construction that storerooms allocated to flats should be included in new leases to avoid inconsistent retention by landlords.

Holding and Implications

The court held that the attic storeroom is not part of the flat under Section 101(1) and is not an "outhouse" within Section 62(2), but it is an "appurtenance" of the flat under Section 62(2). Accordingly, the Respondent is entitled to have the storeroom included in the new lease of the flat.

The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

The decision directly affects the parties by confirming the Respondent's right to include the storeroom in the new lease. No broader precedent beyond this interpretation of statutory terms in the context of leasehold enfranchisement was established.