Buying a lease
If you are either buying a new lease, or remortgaging an existing lease; and you are made aware that the lease does not include a right to support, shelter and protection; you may have difficulty in obtaining a mortgage for your property. The UK Finance Mortgage Lenders’ Handbook (UFK Handbook) requires a lease to include such a right, and without the inclusion of such a right, the mortgage company may not agree to release funds. What can be done in these circumstances?
What is a Right
The Right (legally referred to as an easement), provides one property (known as the dominant tenement) with a right to do something on, or receive something from, a second property (the servient tenement); such property usually being attached to the first property in some way. Such rights always appear in leases, as they are physically attached to each other, and therefore access may be required for maintenance, for example.
Right of Support
There is no automatic easement for the support of one building by another. However, in the case of a flat, rights of support are normally written into the lease, as part of the repairing covenants; and it is rare for a lease not include the right of support.
However, the right of support entitles the owner of the property only to the support of another, and not shelter and protection. The difference between support and shelter and protection is support relates to the structural integrity of building from the neighbouring land where the building is located. Shelter and protection are synonymous as they refer to a direct right benefiting the flat from the parts of the building surrounding the flat, ensuring that the flat itself remains intact from harm i.e. the elements or damage from the other parts of the building.
As a result, if your lease contains the right of support only, then for the purposes of the UKF Handbook, the lease would be insufficient. In these circumstances, you would need to apply to your landlord for a variation of the lease, under which the right to shelter and protection will be added.
If the lease does not contain the right of support, it may be useful to ask your conveyancer to consider the implications of section 62 of the Law of Property Act 1925, if this has not been excluded it could be argued (with difficulty) that an easement of support might be implied under the Act.
However, it is good practice to make sure an express clause is always included and if this is not within the lease, then as a more practical option a deed of variation can be sought in the first instance.
Right of support and shelter or Right of support and protection
What happens however, if your lease provides for support and shelter or support and protection, but not both.
If the literal interpretation of Shelter is “a structure built to give protection” … Therefore, Shelter and Protection appear to have the same meaning. Is it therefore sufficient to have one or the other, or do you still need a variation to include both Shelter and Protection in the clause.
If a deed of variation was already being sought in relation to any other aspects of the lease, it would be prudent to request that the rights granted be amended to include a reference to “shelter and protection” at the same time. If no other variation is required and the landlord provides satisfactory, unconditional repairing obligations in respect of the structure of the building you could take the view that an obligation to provide protection includes an obligation to provide shelter.
The question of whether all three must be included within a lease cannot be answered as every transaction is different with its own set of facts; as would be every case referred to a court to consider. However, it would appear that as long as support is included, together with protection or shelter, a deed of variation is not essential, but would remain advisable.