Rees and Another v Windsor-Clive and Others: CA 1 Jul 2020

Reservation Derogation construed normally

Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed saying that a reservation requiring to a derogation from the grant should be applied restrictively against the landlord.
Held: The appeal failed.
‘To some extent, the argument based on derogation from grant is a circular argument; because before one can embark upon the question whether there has been a derogation from grant, it is first necessary to identify what has been granted. In the case of a lease or tenancy agreement what has been granted is the right to exclusive possession of the land, for the term of the lease or tenancy, on the terms of the lease or tenancy. If a landlord exercises rights in accordance with the terms of the lease or tenancy that cannot amount to a derogation from grant, because those rights are part of the grant itself.’

Lewison, Popplewell, Carr LJJ
[2020] EWCA Civ 816, [2020] WLR(D) 384
Bailii, WLRD
England and Wales
Appeal fromWindsor-Clive and Others v Rees and Another ChD 18-Apr-2019
Claim for injunction to prevent interference with certain claimed rights over land.
Held: Some of the activities that the landlord proposed to carry out were permitted under the terms of the tenancy agreements; but others were not. . .
CitedMolton Builders Ltd v City of Westminster London Borough Council CA 1975
Lord Denning MR said: ‘The doctrine of derogation from grant is usually applied to sales or leases of land, but it is of wider application. It is a general principle of law that, if a man agrees to confer a particular benefit on another, he must not . .
CitedJohnston and Sons Ltd v Holland CA 1988
The test for whether there had been a derogation from a grant was whether there had been a substantial deprivation of benefit, rather than a total deprivation. The principle of non-derogation from grant is ‘not based on some ancient technicality of . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedWheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
CitedBritish Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd HL 1986
The claimant’s product was made from drawings. The drawings were protected as copyright artistic works. They were reproduced in a three dimensional form by the claimant’s own products. Someone who copied the claimant’s products indirectly copied the . .
CitedPlatt and Others v London Underground Ltd ChD 13-Mar-2001
A landlord let two properties at the same site to the same tenant, who operated two different businesses, one from each site. He unlawfully restricted access to the one site, and caused damage to that business, but in doing so, passers by were . .
CitedThe Lyttelton Times Company Limited v Warners Limited PC 31-Jul-1907
(New Zealand) Premises had been leased for use as a printing house, including printing plant and machinery, and the landlords occupied the upper floors for use as bedrooms for their hotel. The landlords then sought an injunction and damages in . .
CitedSouthwark London Borough Council v Mills/Tanner; Baxter v Camden London Borough Council HL 21-Oct-1999
Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.
Held: A landlord’s duty to allow quiet enjoyment does not extend to a . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 01 November 2021; Ref: scu.652313