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Malekshad v Howard de Walden Estates Ltd (2002)


A house and a mews flat linked by a basement and a door were not a single "house" for the purposes of s.1(1) Leasehold Reform Act 1967.


Appeal by the respondent landlord from a decision of the Court of Appeal by which it allowed an appeal by the applicant tenant and held that a house and a mews flat linked by a basement and a door could properly be called a "house" for the purposes of s.1(1) Leasehold Reform Act 1967. The two properties were physically linked by a basement, which extended under both properties but which was used by only one of them, and by access through a door between the two at ground floor level. The main issue on appeal was the interpretation of the phrase "material part" in s.2(2) of the Act.


1) The Court of Appeal had been wrong to apply the guidance given in Tandon v Trustees of Spurgeons Homes (1982) AC 755 because the question of whether it was reasonable to call the building a house did not need to be answered in the present case. (2) The Court of Appeal had been wrong to conclude that the house and the mews flat were one house. (3) Section 2(2) of the Act was concerned to ensure that the right of enfranchisement was not lost by reason of the fact that a trivial or unimportant part of the house in question overhung or underlay another part of the structure to which it was attached. (4) Whether a "material part" of a house lay above or below a part of the structure not comprised in the house depended on the relationship between the part in question and the house as a whole. The test of materiality was not linked to the use made of the part in question by the tenant. (5) Judged in relationship to the whole of the house the part of the basement that lay underneath the mews flat was of no materiality at all. (6) (Lord Hobhouse dissenting) The meaning given to "material" in Duke of Westminster v Birrane (1995) QB was diapproved.
Appeal allowed. Case remitted to the county court.

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05 Dec 2002

House of Lords
Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Millett, Lord Scott of Foscote

LTL 5/12/2002 : [2003] 1 AC 1013 : [2002] 3 WLR 1881 : [2003] 1 All ER 193 : [2003] HLR 31 : [2003] L & TR 13 : [2003] 1 EGLR 151 : [2002] 50 EG 114 (CS) : (2003) 100(6) LSG 26 : (2002) 146 SJLB 279 : [2002] NPC 160 : [2003] 1 P & CR DG18 : Times, December 6, 2002

Timothy Harry

Practice areas
Real Estate