Easement — Constructive trust — Licence — Agreement for provision of fire-escape route through door in party wall into interior of flat — Whether agreement, which was made by deed, created merely a personal licence or whether it constituted an easement or a constructive trust enforceable against the sublessee of the flat in question, although she was not a party to the agreement
agreement made by deed between a number of interested parties a licence was
granted allowing an opening to be made in a party wall between adjacent
properties in St James’s Square, London SW1 — The purpose was to provide a
fire-escape route from the fourth floor of no 23 into the area in the fifth
floor of no 22 now occupied by the sublessee of flat 35, the defendant, Mrs Clark
— A doorway was duly constructed in the opening of the party wall and
arrangements laid down for progress in the case of fire to the public street —
At some stage the doorway was blocked, it is not known by whom — The
plaintiffs, who were entitled to the freehold and leasehold interests in no 23,
brought an action against Mrs Clark — They sought mandatory injunctions to open
up the doorway and later their claim was, at least primarily, for damages as
they had provided alternative escape routes at their own expense — Mrs Clark
had taken third party proceedings against a firm of solicitors
preliminary issues were directed to be heard — The first was whether the deed
constituting the agreement created any rights which were capable in law of
binding the defendant, Mrs Clark — The second was whether, in the light of all
the circumstances, any such rights were binding on her
plaintiffs submitted that the deed operated to create a legal easement over the
defendant’s flat; alternatively, it was contended that she was subject to a
constructive trust to give effect to the rights of the owners and occupiers of
no 23
drawn document in which the word ‘licence’ was deliberately chosen; it created
only a personal licence, the defendant was not a party to or bound by the deed
— Very special circumstances were needed to justify the inference that a
constructive trust had been created — Equity will raise a constructive trust
when it is held to be unconscionable for a person, having received property,
not to give effect to the terms on which he has received it — Such an inference
is not made lightly and in matters relating to title to land certainty is of
prime importance — In the present case the factors relied on were insufficient
to justify such an inference — Judgment was given to the defendant
The following
cases are referred to in this report.
Addiscombe
Garden Estates Ltd v Crabbe [1958] 1 QB 513;
[1957] 3 WLR 980; [1957] 3 All ER 563, CA
Ashburn
Anstalt v Arnold (No 2) [1989] Ch 1; [1988]
2 WLR 706; [1988] 2 All ER 147; (1988) 55 P&CR 137; [1988] 1 EGLR 64;
[1988] 23 EG 128, CA
Binions v Evans [1972] Ch 359; [1972] 2 WLR 729; [1972] 2 All ER 70;
(1972) 23 P&CR 192; [1972] EGD 518; 222 EG 2147, CA
Halsall v Brizell [1957] Ch 169; [1957] 1 All ER 371; [1957] 2 WLR
123
Lyus v Prowsa Developments Ltd [1982] 1 WLR 1044; [1982] 2 All ER
953; (1981) 44 P&CR 213
Street v Mountford [1985] AC 809; [1985] 2 WLR 877; [1985] 2 All ER
289; [1985] 1 EGLR 128; (1985) 274 EG 821, HL
These were two
preliminary issues in an action brought by the plaintiffs, who were the present
freeholders and leaseholders of the property 23 St James’s Square, London SW1,
against Mrs Clark, the sublessee of a flat no 35 in the adjoining premises, 22
St James’s Square, concerning the closing of the doorway between the fourth
floor of no 23 and Mrs Clark’s flat.
John Lindsay
QC and John Rendall (instructed by Needham & James) appeared on behalf of
the plaintiffs; John Boggis (instructed by Jaques & Lewis) represented the
defendant, Mrs Clark; Peter Crampin (instructed by Reynolds Porter Chamberlain)
represented a third party.
Giving
judgment, SIR NICOLAS BROWNE-WILKINSON V-C said: These are two
preliminary issues in an action brought by the plaintiffs, who were the
leaseholders and freeholders of the property 23 St James’s Square, SW1 (‘no
23’). The action is brought against the defendant, Mrs Clark, who is the
sublessee of a flat no 35 in the adjoining premises, 22 St James’s Square. The
action relates to an agreement made or contained in a deed dated March 28 1969,
which provided for a fire-escape route from the fourth floor of no 23, through
the party wall into the area on the fifth floor of no 22 now occupied by flat
35.
At the time of
the deed dated March 28 1969, the ownership of the respective properties was as
follows. As to no 23, the freehold was registered at the Land Registry in the
names of the Friends’ Provident Life Office. The headleaseholder of no 23 was a
firm, Herring Son & Daw (‘Herring’). On the other side of the party wall,
that is to say no 22, the freehold, again registered with the Land Registry,
was vested in a number of people who were the trustees of the Junior Carlton
Club. The headleaseholders, under a lease of 150 years from December 25 1963,
were Pall Mall Developments Ltd.
The deed was
made between the trustees of the Junior Carlton Club of the first part, Pall
Mall Developments, the headleaseholders, of the second part, Friends’ Provident
of the third part and the partners in Herring of the fourth part. It recites
the title of the respective parties. Then the sixth recital reads as follows:
Herring has
requested Pall Mall to make an opening in the party wall between Nos 30 to 35
and No 23 at the level of the fifth floor of Nos 30 to 35, so as to provide No
23 with the fire escape routes hereinafter mentioned, and with the approval and
consent of the trustees and the Friends’ Provident, Pall Mall have carried out
such works as the parties hereto acknowledge.
Then I must
read the larger part of the operative part of the deed:
(1) The trustees hereby grant their licence and
consent to Pall Mall, having made the opening in the wall dividing Nos 30 to 35
and No 23 at the position indicated in red on the attached plan numbered 531/1
and to the erection of the doorway now erected in the said opening.
(2) The trustees and Pall Mall do hereby each of
them grant licence to Friends’ Provident and to Herring and other of the
occupiers for the time being of No 23, (a) to pass through the said opening and
doorway in case of fire only and in such case to enter into Nos 30 to 35 by
such means and to pass along its passages, corridors and stairways and through
its entrance doorway to the public street and (b) in case of fire only to use
the fire escape routes from the seventh floor parapet of No 23 to the roof and
balconies of Nos 30 to 35 on the St James’s Square frontage and a similar fire
escape route on the same
stairways and through its entrance doorway to the public street, which said
fire escape routes are more particularly shown on the attached plans numbered
1508/23, 1508/10 and 1508/11.
(3) Each of the parties hereto covenant with the
other that they will use their best endeavours to ensure that no obstruction is
made so as to prevent free access to the said fire escape routes.
(4) The expressions ‘the trustees’, ‘Pall Mall’,
‘Friends’ Provident’ and ‘Herring’ shall include their respective successors in
the title and assigns.
The opening
referred to in clause 2(a) was the opening from no 23 into what is now the
defendant’s flat no 35. Someone — it is not yet established who — has at some
stage blocked up the doorway. As a result, the route provided for by the 1969
deed as a fire escape has proved incapable of use.
The
plaintiffs, who are those now entitled to the freehold and head-leasehold
interests in no 23, therefore brought these proceedings against Mrs Clark,
seeking mandatory injunctions to open up the doorway or, alternatively, damages
in lieu. The plaintiffs now claim, at least primarily, damages, since during
the currency of the action the plaintiffs have provided alternative fire-escape
routes at substantial expense to themselves.
Before dealing
with the issues that are directed to be heard by me, I must first deal with the
subsequent devolution of the title to nos 22 and 23 since the 1969 deed.
I will deal
first with no 22. The freehold, which is registered under title no NG1337311,
was transferred first to a company, Corix Properties Ltd, which I will call
Corix. It was then later transferred by Corix to Chattanooga Shipping &
Investment Corporation SA. Chattanooga is the present registered proprietor.
The 1969 deed is noted against the freehold title.
As to the
headleasehold interest in no 22, Pall Mall Developments assigned their term to
the Friends’ Provident who in due course surrendered that term to Corix on
October 27 1978. There was then a fresh headlease granted by Corix to a
company, Blissfield Corporation NV. That new headlease is dated July 13 1979.
It grants a headlease of the fourth to 10th floors only of no 22. It contains a
covenant to comply with the provisions of the 1969 deed. The headlease is
itself registered at the Land Registry under title number NGL 357395. Again,
the deed of 1969 is noted against the head-leasehold title in the charges
register.
Finally, I
come to the underleasehold interest in no 22. On October 2 1981 Blissfield
granted to a Mr Hughes a long underlease of flat no 35. That underlease expires
in the year 2051. The underlease is expressed to be granted subject to:
the matters
specified in Part II of the Fourth Schedule hereto.
Part II of the
fourth schedule contains the following words:
The entries
on the Property and Charges Register of title number NGL 357395 excluding any
charges to secure money.
There is
therefore in the underlease itself an express subjection of the demised
premises to the matters referred to in the register of the headlease and the
register of the headlease in turn refers to the 1969 deed.
In addition,
the plan annexed to the underlease shows on it a door in the party wall in flat
35 against which are written the words ‘Existing fire escape to adjoining
premises’.
On March 21
1985 Mr Hughes entered into an agreement with the defendant, Mrs Clark, to
assign to Mrs Clark the underlease of flat 35, 22 St James’s Square. The
agreement provided that:
the property
is sold together with the rights, but subject to the rights exceptions,
reservations, covenants, stipulations and conditions, whereof a copy has been
already supplied to the purchaser or her solicitors contained or referred to in
the said lease and the purchaser shall be deemed to purchase with full
knowledge thereof and shall not raise any objection or requisition in respect
thereof.
The contract
also contains an admission by Mrs Clark that she had inspected the property.
The property was transferred to Mrs Clark by a registered transfer dated March
29 1985.
The underleasehold
title is itself registered with absolute title under title number NGL 409118.
At no stage has the underleasehold register referred in any way to the 1969
deed.
There were
directed to come before me three issues. It has been agreed that in principle I
should be dealing with two only of them. The issues as directed read as
follows:
(1) Whether the deed dated March 28 1969 referred
to in paragraph 3 of the amended statement of claim created any rights capable
in law of binding the defendant.
(2) Whether any rights created by the said deed
are binding on the defendant as registered proprietor at HM Land Registry of
the underlease dated October 2 1981 referred to in paragraph 4(2) of the
amended statement of claim in view of the contents of the register relating
thereto at HM Land Registry.
I will deal
first with the issue as to whether the 1969 deed created any rights capable in
law of binding Mrs Clark.
Broadly the
case for the plaintiffs is put in two different ways. First, on the true
construction of the deed it operated to create a legal easement over flat 35 in
22 St James’s Square. Second, and alternatively, Mrs Clark in the circumstances
is subject to a constructive trust to give effect to the rights of the owners
and occupiers of no 23 conferred by the 1969 deed. I will deal first with the
question of whether there is a legal easement. In my judgment, that is a pure
question of construction of the deed set against the factual background, so far
as it is known, in which it was executed.
Mr Boggis has
appeared for Mrs Clark; in addition, Mr Crampin has appeared for a firm of
solicitors against whom Mrs Clark has taken third-party proceedings. Both Mr
Boggis and Mr Crampin accept that the nature of the rights granted is capable
of constituting a legal easement, ie rights of entry in case of fire and escape
in case of fire can exist as legal easements. The question is not whether they
are capable of constituting an easement but whether on the true construction of
the deed that is the effect of the words used by the parties.
Mr Boggis’ and
Mr Crampin’s case is in essence the simplest possible. Clause 2 of the deed
purports to do nothing more than to grant a licence to do certain acts. It is a
professionally drawn document, drawn with some care. If a professional
draftsman uses the word ‘licence’, he usually means the word ‘licence’. If he
means to grant a right of way, being a right in the land as opposed to a
personal liberty, a professional draftsman is well able to do that. Therefore,
clause 2 takes effect according to its strict language and confers only
personal rights. Since Mrs Clark was not a party to that deed, she cannot be
liable in contract on it. Since it does not confer a property interest in the
property or over the property, it is not enforceable against her.
Mr Lindsay, on
the other hand, for the plaintiffs says that that is too simplistic a view.
This is a deed executed for the benefit of a valuable central London property
which needed a fire certificate. This fire-escape door was needed not only to
ensure the safety of the individuals but also in order to get the necessary
fire certificate to sanction the continued use of the premises for the business
of the plaintiffs. A mere personal licence capable of being defeated by any assignment
of flat 35 or any other part of no 22 would be quite inadequate to meet the
full requirements of the plaintiffs. Mr Lindsay then points out that the
transaction was carried through by way of deed not by way of mere consensual
agreement. It is not called a licence, it is called a deed. The words used are
‘to grant a licence’, the word ‘grant’ being, as he submits, a word much more
appropriate to the grant of property rights than to a mere agreement as to a
personal non-property liberty. He relies on the fact that the rights, whatever
they are, are granted not only to Friends’ Provident and to Herring but also to
the occupiers for the time being of no 23. He relies in particular on clause 4
whereby the trustees and Pall Mall are defined so as to include their
respective successors in title and assigns. Mr Lindsay argues with great force
that, if the document was not to create property rights, what purpose could
there be in defining those on whom the burden of the deed lay as including
their respective successors in title and assigns? Merely personal rights as opposed to property
rights could not be enforced against such successors in title and assigns.
Finally, Mr
Lindsay relies on the line of cases dealing with the difference between
licences and tenancies; for example, Addiscombe Garden Estates Ltd v Crabbe
[1958] 1 QB 513, Street v Mountford [1985] AC 809* and Ashburn
Anstalt v Arnold [1989] Ch 1† . Those cases illustrate that, in
drawing the distinction between a licence of premises on the one hand and a
tenancy of those premises on the other, it is in no sense decisive if the
parties label what they are doing as the grant of a licence. One has to look at
the substance of the matter and see what has been granted: was it a tenancy or
was it strictly a personal contractual licence?
*Editor’s
note: Also reported at [1985] 1 EGLR 128.
† Editor’s
note: Also reported at [1988] 1 EGLR 64.
Despite those
submissions, I am not persuaded that this agreement
True it is that those interested in no 23 urgently needed as permanent as
possible a fire-escape route in order to utilise no 23 properly. But by the
same token the adjoining premises, the Junior Carlton Club, was already subject
to a long development lease in favour of Pall Mall Development. Therefore, the
question of redevelopment was very much on the agenda. To grant an indefinite
freehold easement such as is alleged in this case would have been a very
dangerous step for a developer to take, since it would have conferred rights on
the owners of no 23 which it might have been very expensive to get rid of. The
position is, to my mind, made even clearer on this aspect when one recollects
that, although in this case I am concerned only with clause (2)(a) of the deed,
clause (2)(b) confers other escape routes over the parapets of no 23 on to the
balconies of the adjoining premises of no 22. Therefore, this document was
envisaging very extensive rights not only over flat 35 but also over other
parts of the building. The surrounding circumstances suggest, to my mind, that,
so far as one can draw an inference, although the owners of no 23 wanted as
much as they could get by way of fire escape, the owners of no 22 would be
concerned not to tie up future development of their property. There is
therefore nothing a priori pointing one way or the other as to what was
the likely intention of both parties.
I do not find
it surprising that the transaction was carried through by way of deed. It was a
unilateral transaction. No consideration moved from the owners of no 23 to
those granting the rights, whatever they were, over no 22. Therefore, a deed
was necessary.
I do not find
the use of the word ‘grant’ very significant. In clause (1) the trustees as
freeholders were giving their consent in writing to alterations carried out by
the leaseholders without consent: ‘The trustees hereby grant their
licence.’ That is not granting a legal
interest in the land. Similarly, in clause (2) the use of the words ‘grant
licence’ is simply a phrase commonly used in connection with licences and
carries the matter no further.
Again, I do
not attach much importance to the fact that the licence is granted not only to Friends’
Provident and to Herring but also to ‘other of the occupiers for the time being
of No 23’. I read clause (2) as including those words to show the people who
were entitled to exercise the fire-escape rights, not those who were the
grantees of those rights.
Much the
strongest point, I think, is raised by clause (4), since there is great force
in Mr Lindsay’s submission that, if the rights conferred were purely personal
rights, it is hard to see how the successors and assigns of the trustees of the
Junior Carlton Club and Pall Mall could be affected by the matter in any event.
That is undoubtedly a point pointing the other way, although there is some
force in Mr Crampin’s submission that the parties may have had in mind that
clause (3) of the deed contains a negative covenant which might be enforceable
against successors in title as being a restrictive covenant.
The
indications being far from clear as to what the parties intended, I think that
one has to take this as being a professionally drawn deed in which the
draftsman has deliberately chosen to use the word ‘licence’ and not the
ordinary words associated with the grant of an easement. Therefore, since there
is nothing sufficiently clearly pointing in any other direction, I reach the
conclusion that the deed did create only a personal licence.
Mr Lindsay had
an alternative argument whereby he sought to reach the same result by utilising
section 60 of the Law of Property Act 1925. He said that this should be taken
as being a conveyance of freehold land without words of limitation and,
therefore, under section 60 it passed to the grantees the fee simple in the
rights granted, ie a permanent easement. The basis of that submission is that
under section 205(ix) ‘land’ is defined to include:
an easement,
right, privilege or benefit in, over, or derived from land
He said that
this escape route was a right, privilege or benefit in or over no 22. Therefore
section 60 operated to transfer a freehold interest in it.
I am quite
unable to accept that argument. It is dependent on saying that the rights
created by the 1969 deed are ‘rights, privileges or benefits in or over land’.
The definitions in section 205 of the Law of Property Act 1925 apply only
‘unless the context otherwise requires’. Section 60 is subject to the proviso
that it applies only ‘unless a contrary intention appears in the conveyance’.
In my
judgment, if on the true construction of the document it creates personal
interests only and not rights of the nature of property rights, then a contrary
intention does appear. The Law of Property Act 1925, section 60, does not
convert what would under the general law be a personal right into a
freehold-property right. I therefore hold that the 1969 deed did not confer an
easement on the owners and occupiers for the time being of no 23.
I turn, then,
to the alternative way in which Mr Lindsay puts his case, constructive trust.
As appears from what I have said in reciting the facts of the case, Mrs Clark,
by the agreement to purchase, took the property subject to the rights,
exceptions, reservations, covenants, stipulations and conditions contained or
referred to in the underlease and purchased with full knowledge thereof. The
provisions in the underlease themselves refer to the 1969 deed and its
contents. Therefore, it is said that Mrs Clark has acquired the underlease
subject to and with knowledge of the rights conferred by the 1969 deed and,
even though they would not otherwise be enforceable against her, in the
circumstances she holds subject to a constructive trust to give effect to the
terms of the 1969 deed.
The law on
constructive trusts in this area is not as yet entirely clear. It has, however,
been clarified recently by a Court of Appeal decision. Before coming to that
case, I must mention a decision of Dillon J, as he then was, in Lyus v Prowsa
Developments Ltd [1982] 1 WLR 1044. In that case the plaintiffs had entered
into a contract to buy a plot of registered land from a company. That company
went into liquidation. Prior to the contract between the company and the
plaintiffs, the company’s bank had obtained a legal charge on the land. The
bank as mortgagee sold the property to a purchaser, subject to and with the
benefit of the contract between the plaintiffs and the company. That purchaser
from the bank in turn sold on, taking a covenant to perform the contract in
favour of the plaintiffs. If and to the extent that the plaintiffs’ contract
was enforceable against the company, it was said that the first purchaser was
subject to a constructive trust to give effect to the original sale by the
company in liquidation to the plaintiffs. Dillon J upheld that submission.
Having
considered Binions v Evans [1972] Ch 359, Dillon J reached the
conclusion that there were cases in which the purchase of property expressly
subject to an obligation in favour of the third party could give rise to a
constructive trust to give effect to that obligation to the third party.
However, he distinguished expressly other types of case and said at p 1051H:
By contrast,
there are many cases in which land is expressly conveyed subject to possible
incumbrances when there is no thought at all of conferring any fresh rights on
third parties who may be entitled to the benefit of the incumbrances. The land
is expressed to be sold subject to incumbrances to satisfy the vendor’s duty to
disclose all possible incumbrances known to him, and to protect the vendor
against any possible claim by the purchaser if a third party establishes an
overriding right to the benefit of the incumbrances against the purchaser. So,
for instance, land may be contracted to be sold and may be expressed to be
conveyed subject to the restrictive covenants contained in a conveyance some 60
or 90 years old. No one would suggest that by accepting such a form of contract
or conveyance a purchaser is assuming a new liability in favour of third
parties to observe the covenants if there was for any reason before the
contract or conveyance no one who could make out a title as against the
purchaser to the benefit of the covenants.
Dillon J then
pointed out that the bank, whose charge was prior in time, was under no risk vis-a-vis
the plaintiffs and could safely have sold free of the contract in favour of
the plaintiffs. But the bank had elected to sell expressly subject to the plaintiffs’
contract and with the benefit of it. He also referred to a letter to the bank’s
agents from the first purchasers giving an assurance that the first purchaser
from the bank would take all reasonable steps in its power to make sure that
the interests of contractual purchasers were dealt with quickly and to their
satisfaction.
On the basis
of that evidence, namely no reason for the bank to protect its position by
disclosing an incumbrance which was not a fetter on its title and the express
assurance that effect would be given to the contract in favour of the
plaintiffs, Dillon J held that there was a constructive trust in that case.
That decision
was approved by the Court of Appeal in Ashburn Anstalt v Arnold
[1989] Ch 1. The Court of Appeal put what I hope is the quietus to the
heresy that a mere licence creates an interest in land. They also put the quietus
to the heresy that parties to a contractual licence necessarily become
constructive trustees. They also held (at p 25 D-E) that the mere fact that property
is sold subject to a contractual licence is not sufficient to create a
constructive trust. They held (at p 26A) that the mere fact that somebody has
purchased with notice of a claim does not give rise to a constructive trust.
However, the Court of Appeal plainly considered that Lyus v Prowsa
was rightly decided.
The result, as
it seems to me, is that in the normal case a conveyance of land subject to or
with notice of prior incumbrances or prior interests will not operate so as to
make enforceable under a constructive trust such prior incumbrances or
interests which would otherwise be unenforceable. However, in certain
circumstances equity raises a constructive trust because it is unconscionable
for the person having received such property not to give effect to the terms on
which he received it. As the Court of Appeal said, and with respect I would
agree, at p 26E:
In matters
relating to the title to land certainty is of prime importance. We do not think
it desirable that constructive trusts of land should be imposed in reliance on
inferences from slender materials.
It is important
always to bear in mind that it is of the greatest importance that the title to
land should be capable of being ascertained in accordance with well-known
procedures. To raise constructive trusts which do not fit into the conveyancing
machinery currently operating, thereby giving rise to liabilities of which
purchasers might otherwise not be aware, is a dangerous course to pursue.
In my
judgment, the decision in Ashburn Anstalt does not warrant the creation
of a constructive trust unless there are very special circumstances showing
that the transferee of the property undertook a new liability to give effect to
provisions for the benefit of third parties. It is the conscience of the
transferee which has to be affected and it has to be affected in a way which
gives rise to an obligation to meet the legitimate expectations of the third
party.
In the present
case the position stands strangely. The pleadings do not in terms allege a
constructive trust. I have asked Mr Lindsay what are the factors upon which he
would seek to rely if he were to have leave to amend the pleadings to raise a
constructive trust against Mrs Clark. He says that he would wish to rely on the
fact that Mrs Clark purchased under an agreement which made the flat subject to
the rights and, in addition on the following matters: that Mrs Clark inspected
the premises, saw the door in the premises, saw the plan attached to the lease,
which showed the door there and the caption saying ‘Fire Escape’, and that she
knew that she was taking subject to the fire escape rights.
In my
judgment, even if all those facts were alleged in the pleadings and proved,
they would not be sufficient to raise a constructive trust in this case. There
is no indication in those facts that there was any form of bargain between Mr
Hughes and Mrs Clark that she was undertaking de novo to honour
obligations relating to the fire escape. Short of that, it seems to me that the
claim in constructive trust must fail.
Mr Lindsay
puts his case finally by analogy with the decision of Upjohn J, as he then was,
in Halsall v Brizell [1957] Ch 169. In that case inhabitants of a
building estate laid out in the middle of the 19th century enjoyed under a deed
rights of access over a road on the estate but by the same deed were required
to pay their proportion of the cost of providing the road. Upjohn J expressed
the view (although it was not his eventual decision for other reasons) that the
defendants were not entitled to take advantage of the provisions concerning the
user of the road and the other benefits created by the deed without undertaking
the obligations which the deed itself imposed, ie payment for the services. He
held that, although there was no privity of contract or estate, the defendants
were bound by the positive obligation to pay for the services.
Because the
matter went off on another basis, he never indicated how that obligation would
be enforced. But my understanding is that his judgment was based on the old
doctrine that a man cannot take a benefit under a deed without also performing
the obligations it imposes. It was therefore of the essence of the decision in
that case that the right to use the road and the obligation to pay for it arose
under one and the same deed. Moreover, as I understand the principle, the
obligation to pay could not be enforced by action as such. The only way in
which it could be enforced would be by withholding from the defendants the
right to use the road unless and until they paid the charges due under the
deed.
In my
judgment, that case has no application to the present case. Mr Lindsay seeks to
say that Mrs Clark cannot enjoy her occupation of the flat without reliance on
the underlease. The underlease refers to the 1969 deed. Therefore, Mrs Clark
cannot be allowed to live in the flat without giving effect to the 1969 deed.
In my judgment, that is fallacious. There is no single deed which confers on
Mrs Clark the right to live in the flat and imposes on her the duty to permit
the fire escape. The underlease confers the right to live in the flat: it does
not impose the duty to permit the fire escape. That is not the principle in Halsall
v Brizell. Moreover, I can see no way in which the plaintiffs in
this case could seek to enforce the obligation. The only means of enforcement
in a Halsall v Brizell type of case is to prevent the person from
enjoying the rights which they seek to enjoy under the document, save upon the
terms that they give effect to the positive obligations imposed on them. In the
present case the owners of no 23 have no means of saying that Mrs Clark is not
entitled to occupy her flat 35. I therefore also hold against the plaintiffs on
that ground.
As I have held
that the plaintiffs are not entitled to an easement and it is common ground
that, if there were a constructive trust, which I have ruled against, it would
in any event not be binding on the defendant, it is, in my judgment,
unnecessary for me to decide the second issue referred to me because the
defendants are entitled to judgment in the action in any event.
Judgment was
given for the defendant with costs: plaintiffs to pay also the third party’s
costs. Leave to appeal was given if leave was necessary.
