The rule that grantors must not derogate from their grant requires those who agree to confer benefits on others not to grant them with one hand and take them away with the other. It is often associated with leases. But the litigation in Carnegie v Nolan [19 March 2018] reminds us that the rule can be applied in other cases too.
Mr Carnegie had acquired property from LPA receivers in their capacity as agents for the landowner. The landowner, Mr Nolan, retained the surrounding land and Mr Carnegie paid Mr Nolan £60,000 for a deed of easement granting vehicular access, parking and other rights over the retained land. But the parties fell out when Mr Nolan sought to change the position of the parking spaces allocated to Mr Carnegie in the deed of grant of easement and to obstruct other uses of his land.
Mr Nolan relied on a provision in the deed enabling him to relocate the parking spaces to “such other area as the Grantor may designate from time to time”. Mr Nolan claimed that there were no limitations on their whereabouts and moved the parking spaces to a position that was more than 375 metres away from where they had been. Mr Carnegie claimed that this made his parking rights worthless.
The principles that the court applied were set out in Platt v London Underground Ltd [2001] PLSCS 107. In order to determine whether an act or omission constitutes derogation from grant, the court must consider the nature and extent of the grant and identify what obligations on the part of the grantor, if any, can fairly be regarded as necessarily implicit, having regard to the purpose of the transaction considered in the light of the circumstances existing at the time.
The judge noted that the parking spaces originally allocated to Mr Carnegie were situated on land close by and ruled that it was implicit that any new parking spaces should be substantially as convenient as the existing spaces. Therefore, the purported re-designation of the parking area was invalid.
Mr Carnegie also claimed to be entitled to erect scaffolding on Mr Nolan’s land to repair his roofs. He pointed to the general rights of entry in the deed of easement for the purpose of repairing service installations, the walls and foundations of buildings and structures on the boundary, and eaves, gutters, rainwater pipes and structures overhanging Mr Nolan’s land – and relied, once again, on the principle that a grantor cannot derogate from his grant. But the judge rejected the notion that Mr Carnegie had a right to erect scaffolding. The deed of grant of easement did not grant him any rights of access to repair his roofs. So the rule against non-derogation from grant did not apply.
Did the rule in Wheeldon v Burrows or section 62 of the Law of Property Act 1925 apply to the conveyance to Mr Carnegie, creating rights to erect scaffolding? The judge rejected the suggestion, noting that the erection of scaffolding would give Mr Carnegie exclusive possession of an area of land for what might be a lengthy period of time – which was not permissible under the law on easements. However, the judge did accept that the principle of non-derogation from grant could be applied to the conveyance to confer rights of entry, without scaffolding, for maintenance.
Allyson Colby, property law consultant
