The definition of an easement is one that runs with and benefits the land, when recognised under common law; and so, in this instance, the proclamation of easement by prescription, belied what may be equally construed as adverse possession, while defying the traditional purpose of rights of way over adjoining land.

When an estate comprising fields and a private orchard was sold to a new owner, a neighbouring property owner found themselves subject to complaint and mandatory injunction, when their use of a strip of the newly acquired land amounted to little more than exclusive possession under the pretence of an easement

The defendant in this matter occupied and operated, a wheelwright business that had enjoyed the benefit of storing carriages, and now, commercial and agricultural vehicles awaiting repair on the strip in question.

While the manner in which these items were left allowed for entrance and exit to the owner’s house, there had on occasion, been disruption to the use of the strip beyond that which was held as reasonable.

Having then taken the defendant to court in order for the vehicles to be removed, the argument was put before the judge that prior to the recent purchase, an agreement had been made between the former owners and the defendant, thus allowing him and his father to store carriages and spare parts until such time that they could be serviced and returned to their customers.

This arrangement dated back half a century, and so when the home had been leased to tenants, no complaints had been made regards the defendants use of the land.

This amounted to a claim that the existence of an easement was valid under the Prescription Act 1832.

While easements can be enforced by prescription, the court was indifferent to the manner in which the defendants had used the land, inasmuch as far from using the strip as a means of access, they had simply left a number of objects in situ, with the luxury of knowing they may, or may not, be used and removed.

Furthermore, the defendant’s land was adjacent to the strip and so did not touch the property in question, therefore it fell outside the scope of easement rights, and thus failed to determine the arrangement as one comprising a right of way.

With the defendant relying upon the far-reaching Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd to distinguish the claim, it was agreed that while no immediate objections had been raised by the previous owners, occupying tenants or new owners, it was not possible to consider the manner in which the land was used required possession; therefore, no claim for the former could be upheld, while the court reminded the parties that:

“[A]n easement can be lawfully acquired only if it is capable of judicial definition, restriction and control.”


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Derogation from grant by way of illegal easement, and the right to peaceful enjoyment of property, make for a brief and yet divisive matter, when two leaseholders seek to enforce their own entitlements in the courts.

Having recently acquired tenancy in a shared building, the respondent took steps to reduce her portion of the property, in exchange for subletting to an additional tenant.

In order for this to work, it was proposed by the leaseholder to the landlord, that an iron external staircase would allow for access when the using the room created.

The landlord raised no objections, and so the work went ahead as planned.

Having rented the ground floor of the same building, the claimant’s privacy was impinged upon, as the staircase was erected between two of her bedroom windows.

This translated that the sub-tenant using the stairs was now afforded a clear view into those rooms.

Under the terms of the lease, the landlord was under obligation not to derogate from the arrangement, which included an agreement that no tenant would suffer, or cause to suffer, another tenant any nuisance or reduction of the view to the outside gardens while in occupancy.

As was clear from the location and purpose of the staircase, the claimant was now placed into a position where she either installed blinds or curtains to restrict the view, or argued that the imposition and loss of light resulting from them had constituted a breach of agreement on the part of the landlord.

Upon litigation, the court heard about, and fully appreciated, the invasive nature of the staircase, but when relying upon similar case precedent, there was insufficient evidence to suggest that the invasion of privacy amounted to total loss of the views provided for by the outside gardens, or any enjoyment of natural light.

It was held instead, that the change in circumstances proved mere inconvenience at particular times of the day and little more.

It was also held that while the terms of the lease prevented any use of the property beyond that of private tenants, the staircase had been built upon adjoining land, and not that used and paid for by the tenants, therefore it fell beyond the scope of claim.

In closing, the judge awarded in favour of the respondents, before noting that the landlord had only consented with the erection of the staircase on the respondent’s assurances that the claimant had raised no objections; therefore, there had been misrepresentation as to any disagreement prior to their installation, and so no order for her costs were made, while the court reminded the parties that:

“[I]f the grant or demise be made for a particular purpose, the grantor or lessor comes under an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit or materially less fit for the particular purpose for which the grant or demise was made.”


In order to enjoy the protective nature of exclusive possession from the powers of the Rent Act 1977, it must first be established what type of contractual arrangement has been agreed.

In this instance, the Court of Appeal decided upon two cases where landlords seeking possession were subject to examination.

Aslan v Murphy (No 1 and No 2)

Having entered into a living arrangement with the landlord of a hotel, the appellant was granted use of a basement room, while deprived of many freedoms in lieu of strict usage controls.

The extent of those restrictions included a ninety-minute window, where the appellant was denied access to the room, as well as having to surrender the room keys to the respondent when leaving the room.

It was thus argued that the contract was between a licensor and licensee, as opposed to that of landlord and tenant.

This alteration of rights prevented the appellant from retention of occupancy under the Rent Act 1977; and so, having sought repossession of the room, the matter went to court, whereupon the necessary order was granted prior to an appeal, where the Court found that tenancy rights did exist.

Around the same time, the local authority served a closing order against the respondent upon grounds that the room was unfit for human occupancy and therefore unable to stand as chargeable for rents, as per section 266 of the Housing Act 1985.

This led to a second possession order in favour of the respondent; however, in order to secure alternative accommodation through the local authority, the appellant requested that the courts declared the actual nature of the contract as no notice to quit had been served, and that the appellant was now protected through exclusive possession until such time as notice was given.

Relying upon section 276 of the 1985 Act, the respondent countered that the power of the closing order negated any right to exclusive possession, while under section 277 of the same Act, it was further contended that any continued occupancy by the appellant constituted a criminal offence, subject to occupancy penalties. 

Put before the Court of Appeal, it was held that until clarification of the contract could be ascertained, there could be no effect to the possession order, despite the powers claimed under the Housing Act 1985; and that until such time, neither party could pursue their own ends.

Duke v Wynne

In this case, the relationship was that between a homeowner and a family in need of accommodation, while the contract entered into was one where the respondent reserved the right to terminate the arrangement on or around a two-year period.

Due to the generous size of the property, there was also express denial of exclusive possession within the terms of the contract, due to a provision for additional parties to share the home at the privilege of the respondent.

During the two years in which they remained in occupancy, the appellants used the whole of the house; and at no point, did any new occupiers enter the property, despite such prohibition.

At the point in which the respondent sought possession following her decision to emigrate, it was contested by the appellants that with no alternate means of accommodation, and having had free reign of the house, they were now entitled to remain in occupancy with exclusive possession under the terms of the Rent Act 1977.

Having considered the wording of the contract and the manner in which the appellants had been allowed to reside, it was held by the Court that without any evidence of shared occupancy, the appellants had by virtue of their liberties, enjoyed exclusive possession of the home for the duration of the time passed; and that vacant possession was not legally enforceable, failing any notice to quit, while reminding the parties that:

“[T]here are materials from which it is possible to infer that the occupier is a lodger rather than a tenant. But the inference arises not from the provisions as to keys, but from the reason why those provisions formed part of the bargain.”


Equity regards as done that which ought to be done’ while in this instance, the maxim is perfectly suited to the exploitative coloration of a business agreement; when in September 1937, a parent company and subsidiary entered into a written lease agreement concerning a newly built block of flats.

Shortly after the outbreak of World War II, the buildings became partially occupied due to the risk of bombing; and so, in order to keep the relationship profitable and fair, the claimants agreed to reduce the rent from 2500l to 1250l per annum.

Yet, while the rent reduction was put in writing, it failed to express the end of the revision, despite the original lease agreement running for a period of ninety-nine years.

Although the defendants enjoyed the reduced rent up to December 1945, despite the buildings now enjoying full occupancy with many tenants now paying higher rents than those initially agreed; the death of the parent company’s owner revealed the oversight before the claimant and surviving business partner sought to recover rent arrears to the sum of 625l for the period between 29 September 1945 and 25 December 1945, while the defendants argued that the letter containing the reduced rent constituted a legally binding and thus enforceable contract for the remainder of the lease.

Referring to the binding effects of a promise, the court of the King’s Bench quickly balanced the probability of a breach where an agreement to reduce rents was challenged.

However, on this occasion the court upheld the claim on grounds that when agreeing to the reduce the rent, it had been undertaken with mind to the onset of war, therefore no reasonable person would have entered into an arrangement where one party would unlawfully profit at the expense of another, while reminding the parties that:

“[A] promise intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply.”