Hanina v Morland (2000) 97(47) LSG 41, CA
Easement to use the roof of a neighbour passed on transfer of lease
The respondent in this case was tenant in a premises in a house, the freeholder of which had granted a 99 year lease of the first and second floors. The freeholder had kept all interests in the ground floor of the property. The respondent in this case developed a practice of using the flat roof of one section of the ground floor for their own leisure (specifically as an area for having guests over or to sunbathe – essentially the respondent used the area as a balcony or terrace). The freeholder objected to this use. The tenant however claimed that she had an easement to use the roof of the ground floor in this manner, which was asserted to have passed to the tenant when the tenant took the transfer of the lease.
The issue in this case was whether it was possible for the tenant to have an easement over the roof of the freeholder’s ground floor and whether an easement could exist to use the roof in the way which the tenant used it.
The court held that an easement to use the roof in the way proposed could not exist. This is because the tenant was attempting to assert a right to unrestricted and exclusive use of the roof which was inconsistent with an easement. The use she was asserting was simply incapable of being an easement. However, nominal damages were substituted since she, in any event, had the only access to that area.