A couple have been told they cannot turn the cellar of their maisonette into a room because their lease does not include the subsoil beneath the building.
In Gorst v Knight, the court heard that Mr and Mrs Gorst wanted to increase the height of their cellar from 5ft to 9ft to make it habitable.
The local council had approved the plan, but the freeholder was against it and this led to a legal dispute.
A court has now rejected the plan because the lease did not include the subsoil beneath the building.
Mark Vinall, a partner at law firm Winckworth Sherwood, said the case clarified that there is not a presumption that the subsoil belongs to the relevant flat owner.
He added: “The answer lies in the contract between the flat owner and their landlord, that is the lease. It needs to be established whether the subsoil to be dug into belongs to the flat owner and, if so, whether any of the restrictions in the lease mean that, despite owning the land, the flat owner can’t proceed without obtaining the landlord’s prior consent.”
