Lease Of Airspace Above Roof

An owner of a freehold building owns the air space above the roof.

Lease of airspace above roof.

The same rule can apply to a lease of a building or the top floor in that building. If no such inclusion is made then it is wishful thinking to suggest that the roof and airspace is included even if certain items are included within brackets and seem not to be exhaustive. The court ruled that there is no presumption that a lease which includes a roof will extend upwards to the full height of the airspace available to the landlord. An owner of a freehold building owns the air space above the roof.

If the lease is of the whole of a vertical division of a building it will frequently include the airspace above and subsoil below. Investors may for example lease the airspace to a developer who can help them improve the density of their building by adding a floor or more. That isn t a clear line obviously. One way investors achieve this is by granting leases of the airspace above their properties.

Almost any use of the land requires using some airspace above the surface. A landowner owns as much of the air above the surface as she can reasonably use in connection with the surface. Generally a lease should demise all the self contained flat and go on to include items such as the roof or the roof space and the air space above. Land wouldn t be useable at all if one didn t own some of the air above the surface.

It depends what the lease says whether it includes the air space. In rosebery v rocklee 2011 ewhc 2947 the presumption that the lease of a roof included all the airspace above it was disapplied because the extent of the demise was a matter of construction of the lease. The same rule can apply to a lease of a building or the top floor in that building. If the lease is of a whole building it will usually include the airspace above and subsoil below the building.

Clearly the first floor tenant would need access into the air space above the roof to maintain and repair the roof which is not specified in the lease but presumably this would be an easement of necessity rather than a right to extend into the air space. If the lease includes it the landlord cannot add an extra floor to the building or grant a lease of telecoms equipment or solar panels.