Borman v Griffith

English Property Law

Borman v Griffith
Image: ‘Pathway of Life’ by Connie Tom

Implication by way of contract, is argued in a case involving the conflict of interests between two tenants and a perhaps disorganised and rushed grant of occupancy by the landlord.

In a time immediately before the Law of Property Act 1925, a landowner sought to let out a part of his estate for a determined period. Under the terms of the lease there was at the time, a gravelled road that passed by the tenant’s rented property named ‘The Gardens’, while leading to the door of the main estate property named ‘The Hall’.

At the time the tenant began his residence, there was also an unfinished bridleway that allowed for access to the rear of the Gardens, albeit given no mention within the contract, nor any reliable evidence that use of the drive had been orally agreed between the two parties. During this period, and shortly after taking occupancy of the Gardens, the Hall was leased to another occupier, with no issues arising between them.

A few years afterwards, this same tenant vacated the Hall, and so the landowner let it out to another party for a fixed period, after which the occupier of the Gardens continued to use the gravelled drive as a means of access to the front of his property, as he had since his lease began. Two years after taking up residency, the defendant in this case erected a wire fence to prevent the claimant and tenant of the Gardens from using the gravelled drive as a means of access, hence resulting in litigation.

Relying upon the wording of s.62(1) of the 1925 Act, and the fact that there had never been any other suitable means of access to his home, the claimant argued that an easement by way of implication had been granted by the landlord. When considered by the court, the facts determined that there was a clear difference between the granting of a lease and the conveyance of interest in land or property; and that in this instance the former applied.

There was however, the principle that under the terms of the contract there could be argued, an obligation to undertake full performance of the rights bestowed the claimant, where unless the contract provides specific exclusion of a right of way between two sharing tenants, the gravelled drive afforded both users equal powers to enforce their rights. It was on these grounds that the judge endorsed the action and awarded accordingly, while holding that:

“[A] grantor of property, in circumstances where an obvious, i.e., visible and made road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have intended to grant a right to use it.”

Fitzpatrick v Sterling Housing Association Ltd

English Family Law

Fitzpatrick v Sterling Housing Association Ltd
Image: ‘Time Clock Houses’ by Sunita Khedekar

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The phrase ‘family’ has seen a number of changes over the last century, and so it is that the common law of the United Kingdom is expected to accommodate cultural shifts and the cosmopolitain nature of intimate relationships, when reaching a fair and balanced decision.

In this appeal case, the relationship between a private tenant and potential successor was that of two men, and upon the death of the elder partner, it was found that despite their twenty-year history and the deeply caring bonds between them, the wording of the Housing Act 1988 prevented the surviving party from inheriting the assured tenancy, and thereby remaining in occupation of the home they had shared together.

Because of the widening of interpretation concerning the proximity required to uphold succession, it became possible to appeal to the original judgment, and while the appellant relied upon two sections of the legislation, namely (i) para.2(1) which placed importance on the spousal aspect of relationships, a section which further relied upon the assumption that the two parties were of opposite genders, and (ii) para.3, which extended the right to succeed where those in occupancy at the time of the other’s death could show such living arrangements over a minimum two-year period, while under the scope of ‘family’.

The issue presented to the judges was not one of spousal qualification, but rather agreement that despite the non-traditional relationship between the two men, there did exist an intimacy that by all accounts, could be construed as familial. By applying a number of past and recent precedents, it fell to the five judges to subjectively determine if the statute prescribed by Parliament, contained within it, an ability to embrace the post-modern image of the family unit, without the need for statutory review.

In its conclusion, and somewhat expectedly, there was a fine division of judicial opinion that thankfully provided grace to the appellant, and allowed him to enjoy the home shared with his partner in the years before and leading up to, his passing.