Published: Fri, 12 Oct 2018
Re Webb’s Lease
 Ch 808;  2 All ER 131, 95 Sol Jo 367, 210 LT 267,  2 TLR 530, 157 EG 497
EASEMENTS, RIGHT TO USE, OUTSIDE WALLS, GRANTOR, GRANTEE, IMPLIED RESERVATION, EXPRESS RESERVATION,
INTENTION COMMON TO BOTH PARTIES
In 1949, a landlord let to a tenant the second and first floor of certain premises. In 1949, the landlord granted a lease to the tenant for a period of 21 years. The landlord agreed that the demise included the outer walls of the premises. Two adverts were attached to the outer walls of the building – one of the landlord’s business, which he carried out on the ground floor and one of a brand of matches. They were there for the continuation of the tenancy agreement and the period thereafter. The question was whether the landlord could retain the two adverts during the lease. The High Court ruled in favour of the landlord. According to it, there was an implied reservation to the landlord of the right to use the outside walls, though it was confined specifically to those two adverts and did not allow the landlord to replace them with new ones or add new ones. The tenant appealed this decision to the Court of Appeal.
Can a grantor claim implied reservation of a right over the part granted for the benefit of the part retained?
The appeal was allowed
(1) The general rule is that a grantor cannot claim implied reservation of a right over the part granted for the benefit of the part retained unless he expressly reserved that right.
(2) The burden of proof is on the grantor to show that his case is an exception to the general rule.
(3) The fact that the two adverts were there at the time of the granting of the lease did not absolve the landlord from his duty to reserve the right to use the outside walls in express terms.
(4) The fact that the tenant was aware of the presence of the adverts throughout his tenancy and that he did not object to them when his lease began, was not sufficient to establish an inference of an intention common to both parties at the date of the lease.
(5) The landlord also needed to show that the facts of the case were not consistent with any other explanation save for implied reservation, but failed to do so.
Therefore, the landlord had no right to use the outside walls in order to maintain the advertisements.
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