Miller v Emcer Products Ltd

An appeal concerning a formal demise was dismissed. A shared right to use lavatory accommodation may constitute an easement where the dominant and servient tenements are identifiable, the right is appurtenant, and it enhances the beneficial enjoyment of the dominant tenement. The covenant for quiet enjoyment extends to the whole subject matter of the demise, including that easement. In a formal demise, the covenant encompasses both initial and continuing possession. An express covenant for quiet enjoyment therefore excludes any separate implied obligation to put the tenant into possession where both cover the same ground. Section 1(2) of the Law of Property Act 1925 supports the legal creation of such an easement.

The plaintiff took a sub-underlease of four offices together with a right to use lavatories on the first and second floors in common with others. The second-floor lavatory was unavailable because it was held by an occupier claiming under an earlier paramount title. The underlease contained a qualified express covenant for quiet enjoyment. The plaintiff claimed damages under alleged implied covenants of title and to put him into possession of the lavatory right.

Mr Justice Danckwerts accepted the defendants’ contention that the express covenant excluded the alleged implied covenants and dismissed the action. The appeal concerned the legal nature of the lavatory right, the scope of the words referring to the demised premises, and whether an obligation recognised in Coe v Clay and Jinks v Edwards survived the express covenant.

The Court of Appeal unanimously dismissed the appeal. Romer LJ delivered the judgment, and the Master of the Rolls and Birkett LJ agreed with it.

1. Nature of the right. The contractual right to use the lavatories in common was an easement, not merely an agreement to grant a licence in the future. The dominant and servient tenements were identifiable, the right was appurtenant to the offices, and it enhanced their beneficial use. The temporary exclusion of the servient owner while the right was exercised did not amount to the kind of ouster incompatible with an easement. The right was an interest in or over land capable of creation at law under section 1(2) of the Law of Property Act 1925.
2. Scope of quiet enjoyment. The words referring to the demised premises in the express covenant were construed as covering the whole subject matter of the demise, including the easement, notwithstanding the shorthand description of the four offices elsewhere in the underlease.
3. Qualified covenant. The express covenant was limited to interruptions by the landlords, the superior landlords, or persons claiming under them. The occupier claiming under a paramount title was outside that class, so the plaintiff could not recover under the express covenant itself.
4. No additional implied obligation. The obligation recognised in Coe v Clay and Jinks v Edwards was of doubtful application to a shared right, since no exclusive possession was involved. More fundamentally, a formal demise already carries the covenant for title and quiet enjoyment, which includes the right to be put into possession at the start of the term and to remain in possession. There was therefore no need to imply a separate obligation.
5. Alternative basis. Even if such an obligation could otherwise be implied, it was excluded by the express covenant because both obligations were in pari materia. Section 149 of the Law of Property Act 1925, including subsection (2), had also removed the former relevance of interesse termini by providing that a lease operates from its stated commencement date without actual entry. Appeal dismissed with costs; leave to appeal to the House of Lords refused.

1. Court of Appeal. The appeal from Mr Justice Danckwerts was dismissed unanimously: [1955] EWCA Civ 6.
2. High Court. Mr Justice Danckwerts dismissed the plaintiff’s action for damages for alleged breach of covenant. No separate citation is stated in the judgment.