“But the implications usually explained by the maxim that no one can derogate from his own grant do not stop short with easements. Under certain circumstances there will be implied on the part of the grantor or lessor obligations which restrict the user of the land retained by him further than can be explained by the implication of any easement known to the law. Thus, if the grant or demise be made for a particular purpose…”: per Parker J, Browne v Flower [1911] 1 Ch 219 at p225.
The importance of this proposition was strikingly demonstrated in Saeed v Plustrade Ltd [2001] EWCA Civ 2011; [2002] 2 EGLR 19, where it effectively relieved the court from the task of deciding whether the car-parking rights in dispute were capable of subsisting as an easement.
As regards the degree of disturbance complained of by the tenant, it was held to be immaterial whether the action was founded on infringement of an easement or non-derogation from grant. The test was the same: see
“But the implications usually explained by the maxim that no one can derogate from his own grant do not stop short with easements. Under certain circumstances there will be implied on the part of the grantor or lessor obligations which restrict the user of the land retained by him further than can be explained by the implication of any easement known to the law. Thus, if the grant or demise be made for a particular purpose…”: per Parker J, Browne v Flower [1911] 1 Ch 219 at p225.
The importance of this proposition was strikingly demonstrated in Saeed v Plustrade Ltd [2001] EWCA Civ 2011; [2002] 2 EGLR 19, where it effectively relieved the court from the task of deciding whether the car-parking rights in dispute were capable of subsisting as an easement.
As regards the degree of disturbance complained of by the tenant, it was held to be immaterial whether the action was founded on infringement of an easement or non-derogation from grant. The test was the same: see PP 2002/9.
