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Lexgorge Ltd v Howard de Walden Estates Ltd [2010] PLSCS 54

DATE: 15 Feb 2010

His Honour Judge Dight held that actual user was a relevant factor in determining whether a building was a house reasonably so called for the purposes of an enfranchisement claim under the Leasehold reform Act 1967.  If the court found that a building had been designed or adapted for living in at the date of its construction, it should then consider whether the building was excluded from the definition of a house because it could not reasonably be so called, bearing in mind that those were words of exclusion. It should look at all relevant information. the instant case, the building was a house reasonably so called. In the instant case, it was relevant that, at the date of the tenant's notice of claim: (i) the appearance of the building was that of a house; (ii) although the property had not been used for residential purposes for a considerable period of time, the second and third floors needed only a change of furniture for the residential use to resume; (iii) under the relevant planning consent, residential use was the only lawful use of the second and third floors; and (iv) under the lease covenants, the residential accommodation was to be used as separate self-contained flats and was not intended to be ancillary to the office use of the lower floors. Comparing the two floors of office use with the two floors of residential use, the proportion of residential use required by the planning consent and the terms of the lease was substantial and it was not possible to conclude that the office use was predominant. The fact that the office use of the second and third floors had been unlawful prevented it from being an exceptional circumstance and did not lead to the conclusion that the building should be excluded from the definition of a house or that it was no longer reasonable to call it such. Accordingly, the claimant was entitled to acquire the freehold.