Deed — Fire escape — Whether deed granted personal licence or easement of right to use fire escape — Whether successor in title bound
St James’s Square, London SW1, are adjoining properties — In 1969 the freehold
owners of no 22 and the properties behind it in Pall Mall, nos 30-35, were the
trustees of the Junior Carlton Club (‘the trustees’) — The lessee of those
properties was Pall Mall Developments Ltd (‘Pall Mall’) — At that time the freehold
owners of no 23 were Friends’ Provident & Century Life Office (‘Friends’
Provident’) and the lessees thereof were the three partners in Herring Daw
& Manners (‘Herring’) — In 1969, and with the license and consent of the
trustees, Pall Mall made an opening in the wall dividing nos 30-35 Pall Mall
and no 23 St James’s Square — By clause 2(a) of a deed made on March 28 1969
between the four parties the trustees and Pall Mall ‘do hereby each of them
grant Licence to Friends’ Provident and to Herring and other the occupiers for
the time being of no 23 . . . to pass through the said opening and doorway in
case of fire only and in such case to enter into nos 30-35 by such means and to
pass along its passages corridors and stairway and through its entrance doorway
to the public street’ — By clause 4 of the deed the expressions ‘the trustees’
‘Pall Mall’ ‘Friends’ Provident’ and ‘Herring’ included their respective
successors in title and assigns — The plaintiffs are the owners of various
estates in, and the occupiers of various parts of, office premises on several
floors of no 23 Pall Mall — The defendant is the underlessee of flat 35, 22 St
James’s Square, for a term of 72 years from December 25 1979 — The doorway
referred to in the 1969 deed was a doorway in what is now the party wall
between the plaintiffs’ premises and the defendant’s flat and at some time
prior to April 1987 the doorway was blocked up on the defendant’s side of the
wall — The defendant has refused to reopen the doorway claiming that the 1969 deed
did not create any rights capable in law of binding her — The plaintiffs’
contention that the 1969 deed granted their predecessor in title a legal
easement over the defendant’s flat was not accepted by Sir Nicolas
Browne-Wilkinson V-C — The plaintiffs appealed
cannot, in the present context, be taken to have been eroded by cases such as Addiscombe
Garden Estates Ltd v Crabbe and Street v Mountford,
where an agreement expressed to be a licence has been held to create a tenancy;
those cases depended merely on the exclusive possession given to the licensee,
a state of affairs which cannot arise where all that is given is a right to
pass and repass over another’s land — Although since 1925 it has been
unnecessary, in order to create an easement, to use the word ‘grant’ or use
word limitation, the simple expression ‘grant licence’ is not one which would
have been used by a conveyancer of any experience as the means of creating an
easement — Attributing the presumed intention of the professional draftsman of
the 1969 deed to the parties, the construction of the deed must be approached
in the expectation that when they used the expression ‘grant licence’ they
intended to create a licence properly so called and no more — The
Vice-Chancellor arrived at the right conclusion in the court below when he said
that although the indications were far from clear as to what the parties
intended, 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 — There was nothing
sufficiently clear pointing in any other direction and accordingly the deed
only created a personal licence which did not bind 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
Street v Mountford [1985] AC 809; [1985] 2 WLR 877; [1985] 2 All ER
289; [1985] 1 EGLR 128; (1985) 274 EG 821, HL
Thomas
v Sorrell (1673) Vaugh 330
This was an
appeal by the plaintiffs, IDC Group Ltd, IDC Property Investments Ltd and
Friends’ Provident Life Office (formerly Friends’ Provident & Century Life
Office), from a decision of Sir Nicolas Browne-Wilkinson V-C who, on June 25
1991, determined a preliminary issue as to whether the deed dated March 28
1969 created any rights capable in law of binding the defendant, Mary Black
Lang Clark, in the negative: see [1992] 1 EGLR 187; [1992] 08 EG 108.
John Lindsay
QC and John Randall (instructed by Needham & James, of Birmingham) appeared
for the appellant plaintiffs; John Boggis (instructed by Jaques & Lewis)
represented the respondent defendant; Peter Crampin (instructed by Reynolds
Porter Chamberlain) represented the first third party, AVC Astley (a firm). The
second third party, Blissfield Corporation NV, did not appear and was not
represented.
Giving
judgment, NOURSE LJ said: Shortly stated, the question in this case is
whether a deed made between adjoining owners and expressed to ‘grant licence’
to the owners and occupiers for the time being of one property to pass over
parts of the other in case of fire operated as the grant of an easement or
merely as the grant of a licence.
The adjoining
properties are 22 and 23 St James’s Square, London SW1. On March 28 1969, when
the deed was executed, the freehold owners of no 22 and the properties behind
it in Pall Mall, nos 30 to 35, were the trustees of the Junior Carlton Club (‘the
trustees’) and the lessee thereof for a term of 150 years from December 25 1963
was Pall Mall Developments Ltd (‘Pall Mall’). On the same date the freehold
owners of no 23 were Friends’ Provident & Century Life Office (‘Friends’
Provident’) and the lessees thereof for a term of 35 years from March 25 1963
were the three partners in the firm of Herring Daw & Manners (‘Herring’).
The deed, which I will call ‘the 1969 deed’, was made between those four
parties.
The first five
recitals in the 1969 deed recited the titles of the respective parties. I need
only add that in recital (1) the whole of the property of which the trustees
were the freehold owners, including 22 St James’s Square, was defined as ‘nos
30-35’. The sixth and last recital was in these terms:
Herring has
requested Pall Mall to make an opening in the party wall between Nos 30-35 and
No 23 at the level of the Fifth Floor of Nos 30-35 so as to provide No 23 with
the fire escape routes hereinafter mentioned and with the approval and consent
of the Trustees and of Friends’ Provident Pall Mall have carried out such works
as the parties hereto acknowledge.
Clauses 1 and
2(a) of the operative part of the 1969 deed were in these terms:
1. THE
Trustees hereby grant their licence and consent to Pall Mall having made the
opening in the wall dividing Nos 30-35 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 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 30-35 by such means and
to pass along its passages corridors and stairway and through its entrance
doorway to the public street.
That is the
right with which we are concerned. Another right of fire escape was granted by
clause 2(b). Clause 3 contained a covenant by each of the parties with the
others to use their best endeavours to ensure that no obstruction was made so
as to prevent free access to the fire escape routes.
Clause 4 was
in these terms:
THE
expressions ‘the Trustees’ ‘Pall Mall’ ‘Friends’ Provident’ and ‘Herring’ shall
include their respective successors in title and assigns.
Clause 5
provided for the payment of costs and stamp duty.
Since 1969
there have been alterations in the titles to both properties. For the purposes
of this appeal it is unnecessary to go into them. It is enough to say that the
plaintiffs are the owners of various estates in, and the occupiers of various
parts of, office premises on several floors of no 23 and also of no 29 Pall
Mall. It is accepted that the plaintiffs are entitled to the benefit of the
right granted by clause 2(a) of the 1969 deed, so far as it still subsists and
is capable of being enforced against the defendant, Mary Black Lang Clark, who,
since March 29 1985, has been the underlessee of flat 35, 22 St James’s Square,
for a term of 72 years from December 25 1979. That flat is on the fifth floor
of no 22, being separated by a party wall from the fourth floor of the
plaintiffs’ premises on almost the same level.
The doorway to
which clauses 1 and 2(a) of the 1969 deed related was a doorway in what is now
the party wall between the plaintiffs’ premises and Mrs Clark’s flat. It is
common ground that, at some time prior to April 1987, the doorway was blocked
up on Mrs Clark’s side of the wall, although Mrs Clark says that it was not she
who did it. However, she has refused to reopen it, claiming that the 1969 deed
did not create any rights capable in law of binding her. The plaintiffs assert
the contrary. By the writ in the action issued at the beginning of April 1987
they sought a mandatory injunction requiring Mrs Clark to unblock and restore
the doorway. In the meantime they have had to provide themselves with an
alternative fire escape at what they claim is a substantial cost. So the action
may prove to be one principally for damages. Mrs Clark has joined as third
parties to the proceedings the firm of solicitors who acted for her on the
acquisition of her flat and also the underlessor of her underlease.
It will by now
have become apparent that the plaintiffs’ success in the action depends on
their being able to establish that the 1969 deed created a right capable in law
of binding Mrs Clark; in other words, a legal easement over Mrs Clark’s flat
and not a licence binding only on the licensors. Accordingly, on May 25 1990
Master Gowers made a consent order for the determination of three preliminary
issues, of which the first was expressed in these terms:
Whether the
Deed dated 28th March 1969 referred to in paragraph 3 of the Amended Statement
of Claim created any rights capable in law of binding the Defendant.
That and the
second issue came before Sir Nicolas Browne-Wilkinson V-C, who, on June 25
1991*, answered the first of them in the negative and in favour of Mrs Clark.
Since that was enough to enable Mrs Clark to succeed in the action, he did not
go on to decide the second issue. He dismissed the action and ordered the
plaintiffs to pay the costs of Mrs Clark and the third parties. The plaintiffs
now appeal to this court.
*Editor’s
note: Reported at [1992] 1 EGLR 187.
Before the
Vice-Chancellor the plaintiffs advanced four different arguments in support of
their contention that the 1969 deed created an easement which now binds Mrs
Clark. Three of them are no longer relied on. Now they rely only on what they
contend is the effect of the 1969 deed construed against the admissible factual
background, as to which two matters are not in dispute. First, the right
granted by clause 2(a) of the 1969 deed is capable of being the subject-matter
of an easement. Second, if all that was granted was a licence properly so
called, it would have come to an end either on reasonable notice given by the
licensor to the licensee or when the licensor parted with the land in respect
of which the right subsisted.
The principal
submissions made on behalf of the plaintiffs by Mr Lindsay were these. He
submitted that the 1969 deed, by joining in not only lessees for 144 years and
29 years respectively, but also the two freeholders, had about it an appearance
of longevity. He said that recital (6), by referring to the provision of fire
escape routes for ‘no 23’, was couched in terms appropriate to the grant of a
right intended to enure in perpetuity for the benefit of the property. Then he
placed great reliance on the wording of clause 4, which he rightly said is
expressed in mandatory terms and requires that the definitions of the
respective parties shall include their respective successors in title and
assigns. Thus the beginning of clause 2, if written out in full, would read as
follows:
THE Trustees
and their successors in title and assigns and Pall Mall and its successors in
title and assigns do hereby grant licence.
He submits that
if clause 2 is spelled out in that way, it is seen to be appropriate to the
grant of a right which will bind not only the assigns of the trustees and Pall
Mall but also, and more significantly, their successors in title. So expanded
the grant is plainly not merely personal, but is intended to impose a burden
running with no 22.
Next, Mr
Lindsay relied on clause 3 of the 1969 deed and section 79(1) of the Law of
Property Act 1925. He says, I think correctly, that the covenant in clause 3 is
in substance a negative one. He also says, I assume correctly, that it is a
covenant relating to ‘any land of a covenantor’ within section 79(1). I say
‘assume’ because we have not called on Mr Boggis or Mr Crampin to answer the
appeal and it may be that they would have argued to the contrary. However, the
effect of section 79(1) would be that the covenant in clause 3 was deemed to
have been made by each of the parties on behalf not only of himself but also of
his successors in title and the persons deriving title under him or them. Mr
Lindsay says that that gives clause 3 a contemporaneous existence with and a
similar effect to clause 2 as interpreted by him.
Mr Lindsay
also submits that the word ‘licence’ is not one which must necessarily be
understood in its proper legal sense. He has referred us to Addiscombe
Garden Estates Ltd v Crabbe [1958] 1 QB
proposition that a transaction which is described as a licence may, in reality,
be a tenancy. He relies in particular on a passage in the judgment of Jenkins
LJ [1958] 1 QB 513, at p 522, where he said that that whole document must be
looked at in order to see whether the label which has been attached to it
correctly describes its substance.
* Editor’s
note: Also reported at [1985] 1 EGLR 128.
Next, Mr
Lindsay made a submission based on the common sense of the matter. He said,
correctly, that a right to use somebody else’s property as a fire escape is a
right of the very greatest importance to the person entitled to exercise it,
both as matter of safety and as a matter of commercial good sense. The parties
to a deed, such as the 1969 deed, cannot have intended to grant and accept a
mere licence revocable either, on reasonable notice, or when the licensor parted
with the property in respect of which the right subsisted. Finally, Mr Lindsay
submitted that if the parties intended that the right should be capable of
determination on reasonable notice it is most extraordinary that they did not
make express provision for it in the 1969 deed. That is, I hope, a fair summary
of Mr Lindsay’s principal arguments.
Although the
1969 deed is not in all respects elegantly drawn, it is clear and accepted on
both sides that it was professionally drawn. In deciding what this professional
draftsman intended in 1969 by the use of the expression ‘grant licence’, we
must start from the position that for over 300 years it had been well known to
lawyers in general, and to conveyancers in particular, that a licence properly
so called is a permission to do something on or over land which creates no
interest in it. Thus, in Thomas v Sorrell (1673) Vaugh 330 at p
351, Vaughn CJ said:
A
dispensation or licence properly passeth no interest, nor alters or transfers
property in any thing, but only makes an action lawful, which without it had
been unlawful.
We must start
with the proper legal meaning of ‘licence’ which, even if it is no longer a
term of art, is certainly the next best thing. That is something which Mr
Lindsay’s submissions have at every point failed to recognise. He says that
words must be construed according to their ordinary meaning, but where a word
has a proper legal meaning it is that meaning which must ordinarily be given to
it in a legal document. Moreover, the proper legal meaning of ‘licence’ cannot,
in the present context, be taken to have been eroded by cases such as Addiscombe
Garden Estates Ltd v Crabbe and Street v Mountford,
where an agreement expressed to be a licence has been held to create a tenancy.
Those cases depend mainly on the exclusive possession given to the licensee, a
state of affairs which cannot arise where all that is given is a right to pass
and repass over another’s land.
Next, we ought
to ask ourselves what form of wording this professional draftsman would have
been likely to use in 1969 if he had intended that the trustees, and Pall Mall,
should grant an easement over no 22. Although since 1925 it has been
unnecessary, in order to create an easement, to use the word ‘grant’ or to use
words of limitation, the simple expression ‘grant licence’ is not one which
would have been used by a conveyancer of any experience as the means of
creating an easement: see The Encyclopaedia of Forms and Precedents,
(1966) 4th ed, vol 7, p 663, where there is a precedent for a deed granting an
easement of way by one landowner in favour of an adjoining landowner. If that
precedent had been adapted to clause 2(a) of the 1969 deed, it would have read
something like:
The Trustees
and Pall Mall as beneficial owners hereby grant unto Friends’ Provident and
Herring full right and liberty for them and their respective successors in
title the owners and occupiers for the time being of No 23 or any part thereof
to pass and repass etc.
Then there
would have been an habendum in these terms:
. . . to hold
the said right unto Friends’ Provident and Herring in fee simple.
In all the
circumstances, attributing the presumed intention of the professional draftsman
to the parties, I am of the opinion that we must approach the construction of
the 1969 deed in the expectation that when they used the expression ‘grant
licence’ they intended to grant a licence properly so called and no more. Then
we must ask ourselves whether that expectation is defeated by the submissions which
Mr Lindsay has made to us.
The
Vice-Chancellor thought that much the strongest was that based on clause 4. For
my part, I am not at all sure that that is the case. That clause cannot on any
footing be made to fit easily with other provisions of the 1969 deed to which
it is, on its face, expressed to apply. Thus you would, on a literal
application of clause 4, find clause 1 of the deed being spelled out as
follows:
The Trustees
and their successors in title and assigns hereby grant their licence and consent
to Pall Mall and its successors in title and assigns having made the opening in
the wall etc.
The reference
to the successors in title and assigns of Pall Mall is clearly a nonsense in
that context. The same can probably be said of the reference to the successors
in title and assigns of the trustees, since a continuing permission for the
doing of a single act was unnecessary. It might have been thought that the real
purpose of clause 4 was to include the successors in title and assigns of
Friends’ Provident and Herring within the permission granted by clause 2. But
even that seems unneccessary in the light of the express reference to ‘and
other the occupiers for the time being of no 23’.
Although I see
the force of Mr Lindsay’s argument based on clause 4, I think that it would be
very dangerous to attach to it the weight which he would have us attach to it.
I simply would not expect the professional draftsman of the 1969 deed,
supposing that he had intended to grant an easement, to have granted it in the
terms of clause 2, even with the assistance that Mr Lindsay says that it ought
to receive from clause 4.
In my view,
much the strongest of Mr Lindsay’s arguments are those based on the importance
of the right to the parties, the indefinite terms in which it is expressed and
the omission of any express power to determine it on reasonable notice. He is
entitled to say that the combination of those factors is a demonstration that
the parties intended that the right should have an indefinite existence. At the
end of the day I have not found that to be a decisive consideration. Those
factors are still capable of being explained by a contemplation on the part of
the parties that a right of this importance, which could be exercised only in
extreme and unusual circumstances, would in practice be likely to have an
indefinite existence.
Although, as
is inevitable in treating a question of this kind, I have attached different
levels of emphasis to some of the features of the 1969 deed, my view of this
case is perfectly expressed in the conclusion at which the Vice-Chancellor
arrived at p 10 D-E of the transcript*:
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 only create a personal licence.
*Editor’s
note: Reported at [1992] 1 EGLR 187 at p 189 E.
I would
dismiss this appeal.
STOCKER and BELDAM LJJ agreed and did not add anything.
Appeal
dismissed with costs; application for leave to appeal to the House of Lords
refused.
