Airspace - Is It a Right?

Who has the right to the airspace above a flat? This question was at the centre of a recent legal dispute involving a block of flats.

The block of flats was wider at the bottom than on the upper floors, narrowing at the 6th. The 6th floor tenant obtained permission for and built an extension over the top of the abutting area of the 5th floor, having been granted a lease of the airspace to do so.

A good idea is proved by being copied, and the owner of the 7th floor flat thought it would be a good idea to build over the extension to the 6th floor. He also obtained a lease of the airspace from the landlord. However, the plan was opposed by the owner of the 6th floor flat, who argued that his ‘airspace’ lease included the space adjacent to the 7th floor flat. Alternatively, he argued that his lease included the roof of the extension, which prevented its use by anyone else. The roof of the extension was directly overlooked by the bathroom window of the 7th floor flat.

The issue was not assisted by the plan attached to the airspace lease granted to the owner of the flat on the 6th floor, which did not indicate the vertical extent of the demised premises.

The court dismissed the claim that the lease extended above the 6th floor for several reasons, two of which were that it was contrary to normal expectations that a lease would grant a right beyond the area occupied and also that it would be an unexpected result if the 6th floor tenant had the right to use the space immediately outside the 7th floor bathroom window.

As regards the roof, however, different concerns arose. Whilst the roof had become part of the freehold of the whole building, it had skylights, which made the building of an extension above it impossible unless these were removed. In the circumstances, it was reasonable to conclude that the roof was part of the premises demised under the lease to the 6th floor tenant, but not the airspace above it, thus preventing any extension to the 7th floor.