WILLIAM GRAHAM MILLER v EMCER PRODUCTS LIMITED [1955] EWCA Civ 6

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL.
[1955] EWCA Civ 6Case No Case No.:Venue Royal Courts of Justice
Between
WILLIAM GRAHAM MILLEREMCER PRODUCTS LIMITED
Before
Sir Raymond EvershedLord Justice BirkettLord Justice RomerMr J.A. PLOWMAN Q.C., and Mr H.E.FRANCIS (instructed by Messrs J.G. Bosman, Robinson & Co.)appeared on behalf of the Appellant (Plaintiff).Mr J.G. STRANGMAN Q.C., and Mr DENIS S. CHETWOOD (instructed by Messrs Herbert Smith & Co.)appeared on behalf of the Respondents (Defendants).Date 20 December 1955
[1]THE MASTER OF THE ROLLS : In this case I have had the advantage of reading in advance the Judgment which Lord Justice Romer has prepared. I agree with it, and do not desire to add anything of my own. LORD JUSTICE BIRKETT : I, too, have had the same opportunity and I make the same observations as those made by my Lord. LORD JUSTICE ROMER : This is an appeal from an order of Mr Justice Danckwerts whereby he dismissed the plaintiff's action against the Defendants, who are his landlords, for damages for an alleged breach of covenant. By a sub-underlease (hereinafter referred to as "the underlease") dated the 6th of February 1950 the defendants grated a tenancy to the plaintiff in the following terms:
"(1) The landlord hereby demises unto the tenant all those the four rooms or offices comprising the ground floor of the messuage or building known as Groveland House No. 12 Bow Church Yard in the City of London (hereinafter called 'the said premises') together with the landlords' fixtures and fittings in and about the said premises. And together also with the right for the tenant to use in common with the landlords and superior landlords and all persons authorised by them and the other tenants of Groveland House aforesaid the lavatories on the first and second floors thereof and for that purpose and no other to pass and repass along the staircase leading from the said premises to the said lavatories to hold the same unto the tenant from the date hereof until the 18th day of June 1961 yielding and paying therefor during the said term yearly and proportionately for any fraction of a year the clear yearly rent of £625 by equal quarterly payments in advance on the usual quarter days in every year the first of such payments being in respect of the period from the date hereof to the 25th day of March 1950 to become due and payable on the date hereof and also paying as additional rent a sum equivalent to the annual premium required to insure two years rent of the said premises such additional rent to be paid on the quarter day next following the payment of such premium."
Clause 3 sub-clause 3 of the underlease contained the following covenant for quiet enjoyment by the defendants:
"That if the tenant shall duly pay the rent hereby reserved and shall duly perform and observe the covenants on the part of the tenant hereinbefore contained the tenant shall and may peaceably and quietly hold and enjoy the said premises during the term hereby created without any interruption by the landlords or the superior landlords or any person rightfully claiming under or in trust for it or them."
The "superior landlords" referred to in this sub-clause were the Englefield Trading Company Ltd. This Company had granted to the defendants on 9th April 1948 an underlease from 25th March 1948 until 21st June, 1961, and the parcels thereby demised were precisely the same, including the right to use the lavatories on the first and second floors, as those comprised in clause 1 of the underlease of 6th February, 1950. There are no lavatories in No 12 Bow Church Yard other than these two. When the plaintiff entered into possession of the demised premises on 1th March 1950 he found that these lavatories were locked. He thereupon communicated with the defendants' agents, and as a result the first floor lavatory was unlocked, and thenceforward the plaintiff had the use of it. It was, however, highly inconvenient for the plaintiff, whose staff consisted of both men and women, to have only one lavatory available, and arrangements were made whereby further lavatory accommodation was temporarily placed at his disposal in the adjoining building, No. 11 Bow Church Yard. He was, however, never able to make use of the lavatory on the second floor which, as subsequently transpired, had been included in a very much earlier lease granted in 1939 under a title anterior to that of the Englefield Trading Company. A firm of chartered accountants, Messrs B. A. Smith & Son, were at all material times in possession of the premises comprised in the 1939 lease under a title derived therefrom, and a partner in that firm said in evidence at the trial of this action that they always kept the second floor lavatory locked, and that his firm and their employees had the exclusive use of it. He also said that they had and exercised the right, in common with others, to use the lavatory on the first floor. Having regard to the manifest inconvenience and trouble to which the plaintiff was put by his inability to exercise the right, which had been granted to him by the underlease, to use the second floor lavatory, he issued a writ on 16th July 1954 claiming damages for breach of the defendants' implied covenant for title. The plaintiff could not, of course, sue on the covenant for quiet enjoyment which was contained in the underlease for that covenant was in a qualified form and limited the defendants' liability to interruption by themselves or the Englefield Trading Company Ltd. or persons claiming under them or it, and Messrs Smith, who claimed under a paramount title, were not within this category of persons. By paragraph 3 (as amended) of his statement of claim, the plaintiff pleaded his case as follows:
"There was and is implied in the said sub-underlease a covenant on the part of the defendants that they had and have a good right or title to demise to the plaintiff the right to use the said lavatories in common with the defendants and their superior landlords and all persons authorised by them and the other tenants of Groveland House aforesaid for the term granted by the said sub-underlease. Further or alternatively there was and is implied in the said sub-underlease a covenant on the part of the Defendants that they would put the plaintiff in possession or enjoyment of the right to use the said lavatories in manner aforesaid."
By paragraph 4 the plaintiff alleged a breach by the landlords of the implied covenants mentioned in paragraph 3, and he claimed damages accordingly. The defendants' defence was, in substance, that their express covenant for quiet enjoyment in clause 3 sub-clause 3 of the underlease excluded any such implied covenants as those alleged in paragraph 3 of the amended statement of claim. The learned Judge (Mr Justice Danckwerts) upheld this contention of the defendants and dismissed the plaintiff's action. Before turning to the principal questions of law which were argued before us, it is convenient to deal with two preliminary matters, namely, as to the legal quality of the right granted by the underlease to use the lavatories, and whether this right formed part of "the said premises" to which the lessor's covenant for quiet enjoyment related. As to the first point, it was suggested that inas much as the lessor had no title to grant to the tenant the right to use the lavatory on the ground floor of the premises, the purported grant of this right amounted to no more than an agreement to grant a licence or an easement, and that the plaintiff is entitled to damages for breach of this agreement. This way of presenting the case was not in fact pleaded in the statement of claim, but I am in any case unable to accept it. In my opinion it is impossible to construe the express grant to use the lavatories as a contract to make a grant in the future merely because it subsequently transpired that the lessor had no title. The lessor thought that they were in a position to grant this right and unequivocally attempted to do so, and no question of an agreement to grant some interest in the future arises; nor, in my opinion, is any such agreement to be implied in law. The question remains, however, as to the nature of the right which the lessor purported to include in the demise, and, in particular whether it was a licence or an easement? In my judgment, the right had all the requisite characteristics of an easement. There is no doubt what were intended to be the dominant and servient tenements respectively, and the right was appurtenant to the former and calculated to enhance its beneficial use and enjoyment. It is true that during the times when the dominant owner exercised the right, the owner of the servient tenement would be excluded, but this in greater or less degree is a common feature of many easements (for example, rights of way) and does not amount to such an ouster of the servient owner's rights as was held by Mr Justice Upjohn to be incompatible with a legal easement in Copeland v Greenhalf (1952 Chancery Division, page 488). No case precisely in point on this issue was brought to our attention, but the right to use a lavatory is not dissimilar, I think, to the right to use a neighbour's kitchen for washing, the validity of which as an easement was assumed without question in Heywood v Mallalieu (volume 25 Chancery Division, page 357). No objection can fairly be made based on uncertainty, and it follows, in my judgment, that the right may properly be regarded as an easement which the lessor were professing to grant for a term of years; and such an easement would rank as an interest in or over land capable of being created at law by virtue of section 1 sub-section 2 of the Law of Property Act 1925. The next question is whether this easement which the lessor purported to grant is within the covenant for quiet enjoyment in clause 3 sub-clause 3 of the underlease, and this depends on whether it comes within the words "the said premises" as therein used. The appellant contends that it does not on the ground that by clause 1 of the underlease it is only the four rooms or offices comprising the ground floor of No. 12 Bow Church Yard which are "herein after called 'the said premises'", and that the right to use the lavatories is accordingly excluded from that phrase when it appears in clause 3 sub-clause 3. If so, it would follow that the landlords' fixtures and fittings, which were included in the demise, would be similarly excluded. In my opinion, however, "the said premises" in clause 3 sub-clause 3 include the whole subject-matter of the demise notwithstanding the definition which appears in clause 1. Although many of the provisions of the underlease related only to the rooms or offices, and it was therefore convenient to refer to them under the compendious description of "the said premises", that phrase as used in other contexts (for example, in the provision for payment of additional rent at the end of clause 1) requires an interpretation co-extensive with the whole subject-matter of the underlease; and I have little doubt that such an interpretation should be put on the phrase in clause 3 sub-clause 3. In my judgment, accordingly, the easement which the lessors purported to grant to the tenant in relation to the lavatories is within the covenant for quiet enjoyment. These conclusions being then adverse to the appellant, Mr Plowman's main argument on his behalf may be summarised in brief as follows: (1) The lessors were under an obligation (to be implied from the relationship of landlord and tenant) to put the tenant into possession of the premises demised. (2) These premises included the easement to use the lavatories. (3) The obligation remains unaffected by the express covenant for quiet enjoyment in clause 3 sub-clause 3 of the underlease. (4) The defendants have failed to fulfil the obligation, and must therefore pay damages to the plaintiff. As to the first point, the appellant founds himself on the principle of law which is stated in Woodfall On Landilord And Tenant (25th edition at page 673) in the following terms:
"Where there is an actual demise for one year or more, the lessor impliedly contracts to give the lessee possession at the commencement of the term, and if he fails to do so, by reason of a previous tenant wrongfully holding over, the lessee may recover damages, and is not driven to bring ejectment against the previous tenant."
This passage (to which the learned Judge himself referred in his Judgment) receives undoubted support from the two cases to which the Author refers, videlicet Coe v Clay (volume 5 Bing, page 440) and Jinks v Edwards (volume 11 Exchequer, page 775). In the former of these cases the defendant had agreed to let to the plaintiff certain premises per verba de praesenti , and the plaintiff, being unable to get possession because a preceding occupier wrongfully refused to quit, sued the defendant for damages. The defendant's case was that as the plaintiff had an interest on which he might have brought an ejectment, he had shown no breach by the defendant. A verdict was, however, found for the plaintiff, and the Court of Common Pleas refused a motion to set it aside. "The court", says the reporter "were all clearly of opinion, that he who lets, agrees to give possession, and not merely to give a chance of a law suit". In Jinks v Edwards by an agreement in writing the defendants agreed to let to the plaintiff certain premises for one year from 29th September 1854 and so on from year to year. The plaintiff sued the Defendants alleging a failure or refusal by them to give or let the plaintiff into possession on the agreed date or subsequently. The defendants demurred on the ground that the agreement did not contain any contract on the part of the defendants to give the plaintiff possession of the premises. The authority of Coe v Clay to the effect that every person who lets premises impliedly undertakes to give possession of them was challenged by Serjeant Hayes in supporting the demurrer. "That doctrine", he argued, "cannot be supported. In Drury v. Macnamara (volume 5 Ellis & Blackburn, page 612) Lord Campbell (Chief Justice) points out that the foundation of the judgment in Coe v. Clay was, that the instrument operated as a lease." and Baron Alderson interjected:
"It is the same here"
. The court held that the case of Coe v Clay was directly in point, and that there must be judgment for the plaintiff. It appears to me, apart altogether from other considerations, to be highly questionable whether the principle which governed these two cases can have any application to an easement such as the right to use lavatory accommodation in common with other people. The principle is readily intelligible in relation to property such as a dwelling-house and land which are let to a tenant, for so long as some third party insists on occupying the property or some material part thereof the tenant is either wholly or partially ousted from the exclusive possession to which, under his tenancy, he is prima facie entitled. In the present case the plaintiff was in fact put in exclusive possession of all that part of the subject-matter of the grant to the exclusive possession of which he was, by the terms of the grant, entitled. In the case, however, of a right merely to share the use of a part of premises - be it the lavatory, bathroom, kitchen or any other room - no question of exclusive possession can arise, and therefore the landlord is neither able nor obliged to put his tenant in sole possession of that part at the beginning of the tenancy. It is, however, unnecessary to express a concluded view on this point for the principle of Coe v Clay does not, in my judgment, apply to the present case for an altogether different reason. It has long been established that if a lessor demises property to a tenant and enters into no express covenants for title or for quiet enjoyment, certain promises are implied by him by force of the word "demise", namely, that he is entitled to grant some term in the demised premises, and that the lessee shall have quiet enjoyment of the premises: Burnett v Lynch (volume 5 Barnewall & Cresswell page 589 at page609); Hart v Windsor (volume 12 (Meeson & Welsby page 68 at page 85). It was pointed out in Line v Stephenson (volume 4 Bingham's New Cases, page 678; volume 5 Bingham's New Cases, page 183) that these promises are more properly to be regarded as embodied in one single implied covenant, and that this covenant may be broken either by want of title or by the eviction of the tenant. It was also, however, decided in Line v Stephenson that there is no room for the implication of the covenant in a demise if the lessor enters into an express covenant for quiet enjoyment. The reason for this is that an express covenant as to one branch of the covenant implied by the word "demise" excludes the other, on the principle expressio unius est exclusio alterius (per Lord Abinger, volume 5 Bingham's New Cases, page 184). Accordingly in the underlease now in question there can be no implied covenant by the landlords either as to title or for quiet enjoyment. Mr Plowman for the appellant, conceded this, but he contended that the implied promise by a lessor to put his tenant into possession at the commencement of the tenancy, which was recognised in Coe v Clay , has an existence of its own which is independent of the covenant either for title or for quiet enjoyment, and which is accordingly unaffected by the principle of Line v Stephenson . Mr Plowman argued in the alternative that that principle only displaces implied covenants which are in pari materia with covenants for title and for quiet enjoyment, and that such cannot be said of the obligation in Coe v Clay . As to the former of these submissions he relied on a passage in the judgment of Mr Justice Chitty in Wallis v Hands (1893 2 Chancery Division, page 75). In that case the plaintiff in 1887 took a lease of certain minerals which, to his knowledge, had already been included in a lease to other parties which had been granted in 1884. The plaintiff never entered into possession under the lease of 1887, although it purported to be a lease in possession, and in 1888 the lessees of the lease of 1884 assigned the term thereby demised. The plaintiff then brought an action against the assigns in order to establish the priority of his own title over them and against his lessor on the implied covenant for quiet enjoyment, for the lease of 1887 contained no express covenant in that behalf. Mr Justice Chitty held that in the circumstances the plaintiff had no more than an interesse termini , and accordingly could not maintain an action on the implied covenant. The decision on this point has in effect been overruled by section 149 of the Law of Property Act 1925 which abolished the doctrine of interesse termini . In so far, therefore, as the decisions in Coe v Clay and Jinks v Edwards may have depended on the view that any covenant for quiet enjoyment, whether express or implied, could not be asserted by a tenant before actual entry, the basis of the decisions has been taken away by the Law of Property Act since it is provided in terms by section 149 sub-section (2) of that Act that a lease operates from the date fixed for commencement of the term without actual entry. But in the course of his Judgment on this matter, Mr Justice Chitty expressed himself as follows:
"The law provides a person having an interesse termini with an adequate remedy against the granter of the term, without there being any necessity to have recourse to an action on the covenant for quiet enjoyment; he can bring an action against the granter of the term for not putting him in possession: see Coe v. Clay and Jinks v. Edwards . This right of action is also founded on implied covenant. The present action is not to enforce any such right; nor are there any facts proved which would give rise to it."
Mr Plowman submits accordingly on that the learned Judge was expressing the view that the Coe v Clay obligation (if I may so describe it) has in any event a distinct operation from that of the covenant for quiet enjoyment, and imposes on the lessor a liability separate from that which arises under the latter covenant. The isolation and independence of the obligation from the implied covenant for title and quiet enjoyment appears indeed also to be recognised in some of the text-books (see, for example, Halsbury's Laws Of England, 2nd edition, Volume 20, pages 242, 243, and Hill & Redman's Law of Landlord And Tenant, 11th edition, paragraph 113). This view would also appear to receive support at first sight from the fact that in neither Coe v Clay nor is Jinks v Edwards did the tenants claim relief under either an implied covenant for quiet enjoyment or an implied covenant for title; in each case they rested their claim on the duty of a landlord, implicit in the relationship into which he enters with his tenant, to put the tenant into possession at the beginning of the tenancy; and it was on that ground and no other that the court awarded damages. I think, however, that even apart from the question, already mentioned, of suing on the covenant for quiet enjoyment before entry, this point is sufficiently answered by the fact that in neither of these cases was a formal lease executed by the landlord; in Coe v Clay the letting was oral, and in Jinks v Edwards the tenancy arose out of an agreement for a lease. It was held in Bandy v Cartwright (volume 8 Exchequer, page 913) and had for long been the law that no covenant for title is implied in oral lettings. The question whether a covenant for quiet enjoyment should be implied in parol lettings and in mere agreements was an uncertain one over a period of many years, and it was not until Markham v Paget (1908 volume 1 Chancery Division 697) that Mr Justice Swinfen-Eady after a review of the authorities, decided definitely that it should. In these circumstances it may well be that the actions in Coe v Clay and Jinks v Edwards were not brought or decided on an implied covenant for quiet enjoyment or title because it was thought that no such implication existed or could be relied on in view of the informal character of the lettings which were there in question. For myself, I do not think that there is any ground for implying the Coe v Clay obligation in addition to the covenant for title and quiet enjoyment which is implicit in a formal instrument of demise or grant. By the very force of the liability which is imposed on a lessor under the covenant for quiet enjoyment, the tenant is entitled to be put into possession of the premises which are leased to him at the outset of his tenancy ( Ludwell v Newman volume 6 Durnford & East, page 458) and to remain quietly in possession thereof throughout the term. Mr Plowman relied on the statement by Mr Justice Chitty in Wallis v Hands at page 84 of the report that "… the essence of a breach of a covenant for quiet enjoyment in a lease appears to me to be a disturbance of the lessee's possession." I do not, however, think that Mr Justice Chitty was intending to say that the covenant does not begin to operate until the tenant has obtained possession, for it is quite clear that it operates from the moment when the demised term starts to run. There is, in my opinion, no necessity, therefore, for implying the Coe v Clay obligation in a formal demise, and I would accordingly have felt considerable difficulty in implying it in the underlease even if no express covenant for quiet enjoyment has been incorporated. Even, however, if I am wrong in that, I am quite clear that any such implication is excluded by reason of this express covenant on the principle of Line v Stephenson . Mr Plowman rightly said (and this was his alternative way of putting the point) that an express covenant will operate only to displace an implied covenant if they both cover the same ground - or, in other words, if they are in pari materia (Norton On Deeds (2nd edition, page 601). This is true, but it appears to me, as I have already indicated, that the purpose of the Coe v Clay obligation is fully covered by the covenant for quiet enjoyment which is implied from the word "demise". Such a covenant entitles the tenant to be put into possession as well as to remain in possession thereafter, and this is exactly the purpose of the obligation which was implied in Coe v Clay . In any case I find it impossible to regard a covenant to put the lessee in possession at the beginning of the term as being otherwise than in pari materia with a covenant that he should remain in possession thereafter. It was not suggested that the form of the express covenant in clause 3 sub-clause 3 of the underlease is of narrowers scope than a covenant for quiet enjoyment which is implied from the word "demise", and it accordingly follows that this covenant also answers the purpose of the obligation in Coe v Clay . In these circumstances it is not possible, as I think, successfully to contend that if, contrary to my own view, the obligation upon which the appellant relies can be incorporated by implication in a formal lease, it can survive the eliminating effect of an express covenant for quiet enjoyment such as that which is contained in the underlease. In my judgment, accordingly, the learned judge came to a correct conclusion in this case, and the appeal should be dismissed.

LORD JUSTICE ROMER : This is an appeal from an order of Mr Justice Danckwerts whereby he dismissed the plaintiff's action against the Defendants, who are his landlords, for damages for an alleged breach of covenant.

[3]By a sub-underlease (hereinafter referred to as "the underlease") dated the 6th of February 1950 the defendants grated a tenancy to the plaintiff in the following terms:
"(1) The landlord hereby demises unto the tenant all those the four rooms or offices comprising the ground floor of the messuage or building known as Groveland House No. 12 Bow Church Yard in the City of London (hereinafter called 'the said premises') together with the landlords' fixtures and fittings in and about the said premises. And together also with the right for the tenant to use in common with the landlords and superior landlords and all persons authorised by them and the other tenants of Groveland House aforesaid the lavatories on the first and second floors thereof and for that purpose and no other to pass and repass along the staircase leading from the said premises to the said lavatories to hold the same unto the tenant from the date hereof until the 18th day of June 1961 yielding and paying therefor during the said term yearly and proportionately for any fraction of a year the clear yearly rent of £625 by equal quarterly payments in advance on the usual quarter days in every year the first of such payments being in respect of the period from the date hereof to the 25th day of March 1950 to become due and payable on the date hereof and also paying as additional rent a sum equivalent to the annual premium required to insure two years rent of the said premises such additional rent to be paid on the quarter day next following the payment of such premium."
[4]Clause 3 sub-clause 3 of the underlease contained the following covenant for quiet enjoyment by the defendants:
"That if the tenant shall duly pay the rent hereby reserved and shall duly perform and observe the covenants on the part of the tenant hereinbefore contained the tenant shall and may peaceably and quietly hold and enjoy the said premises during the term hereby created without any interruption by the landlords or the superior landlords or any person rightfully claiming under or in trust for it or them."
[5]The "superior landlords" referred to in this sub-clause were the Englefield Trading Company Ltd. This Company had granted to the defendants on 9th April 1948 an underlease from 25th March 1948 until 21st June, 1961, and the parcels thereby demised were precisely the same, including the right to use the lavatories on the first and second floors, as those comprised in clause 1 of the underlease of 6th February, 1950. There are no lavatories in No 12 Bow Church Yard other than these two.[6]When the plaintiff entered into possession of the demised premises on 1th March 1950 he found that these lavatories were locked. He thereupon communicated with the defendants' agents, and as a result the first floor lavatory was unlocked, and thenceforward the plaintiff had the use of it. It was, however, highly inconvenient for the plaintiff, whose staff consisted of both men and women, to have only one lavatory available, and arrangements were made whereby further lavatory accommodation was temporarily placed at his disposal in the adjoining building, No. 11 Bow Church Yard. He was, however, never able to make use of the lavatory on the second floor which, as subsequently transpired, had been included in a very much earlier lease granted in 1939 under a title anterior to that of the Englefield Trading Company. A firm of chartered accountants, Messrs B. A. Smith & Son, were at all material times in possession of the premises comprised in the 1939 lease under a title derived therefrom, and a partner in that firm said in evidence at the trial of this action that they always kept the second floor lavatory locked, and that his firm and their employees had the exclusive use of it. He also said that they had and exercised the right, in common with others, to use the lavatory on the first floor. Having regard to the manifest inconvenience and trouble to which the plaintiff was put by his inability to exercise the right, which had been granted to him by the underlease, to use the second floor lavatory, he issued a writ on 16th July 1954 claiming damages for breach of the defendants' implied covenant for title. The plaintiff could not, of course, sue on the covenant for quiet enjoyment which was contained in the underlease for that covenant was in a qualified form and limited the defendants' liability to interruption by themselves or the Englefield Trading Company Ltd. or persons claiming under them or it, and Messrs Smith, who claimed under a paramount title, were not within this category of persons.[7]By paragraph 3 (as amended) of his statement of claim, the plaintiff pleaded his case as follows:
"There was and is implied in the said sub-underlease a covenant on the part of the defendants that they had and have a good right or title to demise to the plaintiff the right to use the said lavatories in common with the defendants and their superior landlords and all persons authorised by them and the other tenants of Groveland House aforesaid for the term granted by the said sub-underlease. Further or alternatively there was and is implied in the said sub-underlease a covenant on the part of the Defendants that they would put the plaintiff in possession or enjoyment of the right to use the said lavatories in manner aforesaid."
[8]By paragraph 4 the plaintiff alleged a breach by the landlords of the implied covenants mentioned in paragraph 3, and he claimed damages accordingly. The defendants' defence was, in substance, that their express covenant for quiet enjoyment in clause 3 sub-clause 3 of the underlease excluded any such implied covenants as those alleged in paragraph 3 of the amended statement of claim. The learned Judge (Mr Justice Danckwerts) upheld this contention of the defendants and dismissed the plaintiff's action.[9]Before turning to the principal questions of law which were argued before us, it is convenient to deal with two preliminary matters, namely, as to the legal quality of the right granted by the underlease to use the lavatories, and whether this right formed part of "the said premises" to which the lessor's covenant for quiet enjoyment related.[10]As to the first point, it was suggested that inas much as the lessor had no title to grant to the tenant the right to use the lavatory on the ground floor of the premises, the purported grant of this right amounted to no more than an agreement to grant a licence or an easement, and that the plaintiff is entitled to damages for breach of this agreement. This way of presenting the case was not in fact pleaded in the statement of claim, but I am in any case unable to accept it. In my opinion it is impossible to construe the express grant to use the lavatories as a contract to make a grant in the future merely because it subsequently transpired that the lessor had no title. The lessor thought that they were in a position to grant this right and unequivocally attempted to do so, and no question of an agreement to grant some interest in the future arises; nor, in my opinion, is any such agreement to be implied in law. The question remains, however, as to the nature of the right which the lessor purported to include in the demise, and, in particular whether it was a licence or an easement? In my judgment, the right had all the requisite characteristics of an easement. There is no doubt what were intended to be the dominant and servient tenements respectively, and the right was appurtenant to the former and calculated to enhance its beneficial use and enjoyment. It is true that during the times when the dominant owner exercised the right, the owner of the servient tenement would be excluded, but this in greater or less degree is a common feature of many easements (for example, rights of way) and does not amount to such an ouster of the servient owner's rights as was held by Mr Justice Upjohn to be incompatible with a legal easement in Copeland v Greenhalf (1952 Chancery Division, page 488). No case precisely in point on this issue was brought to our attention, but the right to use a lavatory is not dissimilar, I think, to the right to use a neighbour's kitchen for washing, the validity of which as an easement was assumed without question in Heywood v Mallalieu (volume 25 Chancery Division, page 357). No objection can fairly be made based on uncertainty, and it follows, in my judgment, that the right may properly be regarded as an easement which the lessor were professing to grant for a term of years; and such an easement would rank as an interest in or over land capable of being created at law by virtue of section 1 sub-section 2 of the Law of Property Act 1925.[11]The next question is whether this easement which the lessor purported to grant is within the covenant for quiet enjoyment in clause 3 sub-clause 3 of the underlease, and this depends on whether it comes within the words "the said premises" as therein used. The appellant contends that it does not on the ground that by clause 1 of the underlease it is only the four rooms or offices comprising the ground floor of No. 12 Bow Church Yard which are "herein after called 'the said premises'", and that the right to use the lavatories is accordingly excluded from that phrase when it appears in clause 3 sub-clause 3. If so, it would follow that the landlords' fixtures and fittings, which were included in the demise, would be similarly excluded. In my opinion, however, "the said premises" in clause 3 sub-clause 3 include the whole subject-matter of the demise notwithstanding the definition which appears in clause 1. Although many of the provisions of the underlease related only to the rooms or offices, and it was therefore convenient to refer to them under the compendious description of "the said premises", that phrase as used in other contexts (for example, in the provision for payment of additional rent at the end of clause 1) requires an interpretation co-extensive with the whole subject-matter of the underlease; and I have little doubt that such an interpretation should be put on the phrase in clause 3 sub-clause 3. In my judgment, accordingly, the easement which the lessors purported to grant to the tenant in relation to the lavatories is within the covenant for quiet enjoyment.[12]These conclusions being then adverse to the appellant, Mr Plowman's main argument on his behalf may be summarised in brief as follows:(1) The lessors were under an obligation (to be implied from the relationship of landlord and tenant) to put the tenant into possession of the premises demised.(2) These premises included the easement to use the lavatories.(3) The obligation remains unaffected by the express covenant for quiet enjoyment in clause 3 sub-clause 3 of the underlease.(4) The defendants have failed to fulfil the obligation, and must therefore pay damages to the plaintiff.[13]As to the first point, the appellant founds himself on the principle of law which is stated in Woodfall On Landilord And Tenant (25th edition at page 673) in the following terms:
"Where there is an actual demise for one year or more, the lessor impliedly contracts to give the lessee possession at the commencement of the term, and if he fails to do so, by reason of a previous tenant wrongfully holding over, the lessee may recover damages, and is not driven to bring ejectment against the previous tenant."
[14]This passage (to which the learned Judge himself referred in his Judgment) receives undoubted support from the two cases to which the Author refers, videlicet Coe v Clay (volume 5 Bing, page 440) and Jinks v Edwards (volume 11 Exchequer, page 775). In the former of these cases the defendant had agreed to let to the plaintiff certain premises per verba de praesenti , and the plaintiff, being unable to get possession because a preceding occupier wrongfully refused to quit, sued the defendant for damages. The defendant's case was that as the plaintiff had an interest on which he might have brought an ejectment, he had shown no breach by the defendant. A verdict was, however, found for the plaintiff, and the Court of Common Pleas refused a motion to set it aside. "The court", says the reporter "were all clearly of opinion, that he who lets, agrees to give possession, and not merely to give a chance of a law suit".[15]In Jinks v Edwards by an agreement in writing the defendants agreed to let to the plaintiff certain premises for one year from 29th September 1854 and so on from year to year. The plaintiff sued the Defendants alleging a failure or refusal by them to give or let the plaintiff into possession on the agreed date or subsequently. The defendants demurred on the ground that the agreement did not contain any contract on the part of the defendants to give the plaintiff possession of the premises. The authority of Coe v Clay to the effect that every person who lets premises impliedly undertakes to give possession of them was challenged by Serjeant Hayes in supporting the demurrer. "That doctrine", he argued, "cannot be supported. In Drury v. Macnamara (volume 5 Ellis & Blackburn, page 612) Lord Campbell (Chief Justice) points out that the foundation of the judgment in Coe v. Clay was, that the instrument operated as a lease." and Baron Alderson interjected:
"It is the same here"
. The court held that the case of Coe v Clay was directly in point, and that there must be judgment for the plaintiff.[16]It appears to me, apart altogether from other considerations, to be highly questionable whether the principle which governed these two cases can have any application to an easement such as the right to use lavatory accommodation in common with other people. The principle is readily intelligible in relation to property such as a dwelling-house and land which are let to a tenant, for so long as some third party insists on occupying the property or some material part thereof the tenant is either wholly or partially ousted from the exclusive possession to which, under his tenancy, he is prima facie entitled.[17]In the present case the plaintiff was in fact put in exclusive possession of all that part of the subject-matter of the grant to the exclusive possession of which he was, by the terms of the grant, entitled. In the case, however, of a right merely to share the use of a part of premises - be it the lavatory, bathroom, kitchen or any other room - no question of exclusive possession can arise, and therefore the landlord is neither able nor obliged to put his tenant in sole possession of that part at the beginning of the tenancy. It is, however, unnecessary to express a concluded view on this point for the principle of Coe v Clay does not, in my judgment, apply to the present case for an altogether different reason.[18]It has long been established that if a lessor demises property to a tenant and enters into no express covenants for title or for quiet enjoyment, certain promises are implied by him by force of the word "demise", namely, that he is entitled to grant some term in the demised premises, and that the lessee shall have quiet enjoyment of the premises: Burnett v Lynch (volume 5 Barnewall & Cresswell page 589 at page609); Hart v Windsor (volume 12 (Meeson & Welsby page 68 at page 85). It was pointed out in Line v Stephenson (volume 4 Bingham's New Cases, page 678; volume 5 Bingham's New Cases, page 183) that these promises are more properly to be regarded as embodied in one single implied covenant, and that this covenant may be broken either by want of title or by the eviction of the tenant. It was also, however, decided in Line v Stephenson that there is no room for the implication of the covenant in a demise if the lessor enters into an express covenant for quiet enjoyment. The reason for this is that an express covenant as to one branch of the covenant implied by the word "demise" excludes the other, on the principle expressio unius est exclusio alterius (per Lord Abinger, volume 5 Bingham's New Cases, page 184).[19]Accordingly in the underlease now in question there can be no implied covenant by the landlords either as to title or for quiet enjoyment. Mr Plowman for the appellant, conceded this, but he contended that the implied promise by a lessor to put his tenant into possession at the commencement of the tenancy, which was recognised in Coe v Clay , has an existence of its own which is independent of the covenant either for title or for quiet enjoyment, and which is accordingly unaffected by the principle of Line v Stephenson . Mr Plowman argued in the alternative that that principle only displaces implied covenants which are in pari materia with covenants for title and for quiet enjoyment, and that such cannot be said of the obligation in Coe v Clay . As to the former of these submissions he relied on a passage in the judgment of Mr Justice Chitty in Wallis v Hands (1893 2 Chancery Division, page 75). In that case the plaintiff in 1887 took a lease of certain minerals which, to his knowledge, had already been included in a lease to other parties which had been granted in 1884. The plaintiff never entered into possession under the lease of 1887, although it purported to be a lease in possession, and in 1888 the lessees of the lease of 1884 assigned the term thereby demised. The plaintiff then brought an action against the assigns in order to establish the priority of his own title over them and against his lessor on the implied covenant for quiet enjoyment, for the lease of 1887 contained no express covenant in that behalf. Mr Justice Chitty held that in the circumstances the plaintiff had no more than an interesse termini , and accordingly could not maintain an action on the implied covenant. The decision on this point has in effect been overruled by section 149 of the Law of Property Act 1925 which abolished the doctrine of interesse termini . In so far, therefore, as the decisions in Coe v Clay and Jinks v Edwards may have depended on the view that any covenant for quiet enjoyment, whether express or implied, could not be asserted by a tenant before actual entry, the basis of the decisions has been taken away by the Law of Property Act since it is provided in terms by section 149 sub-section (2) of that Act that a lease operates from the date fixed for commencement of the term without actual entry.[20]But in the course of his Judgment on this matter, Mr

Justice Chitty expressed himself as follows:

"The law provides a person having an interesse termini with an adequate remedy against the granter of the term, without there being any necessity to have recourse to an action on the covenant for quiet enjoyment; he can bring an action against the granter of the term for not putting him in possession: see Coe v. Clay and Jinks v. Edwards . This right of action is also founded on implied covenant. The present action is not to enforce any such right; nor are there any facts proved which would give rise to it."
[21]Mr Plowman submits accordingly on that the learned Judge was expressing the view that the Coe v Clay obligation (if I may so describe it) has in any event a distinct operation from that of the covenant for quiet enjoyment, and imposes on the lessor a liability separate from that which arises under the latter covenant. The isolation and independence of the obligation from the implied covenant for title and quiet enjoyment appears indeed also to be recognised in some of the text-books (see, for example, Halsbury's Laws Of England, 2nd edition, Volume 20, pages 242, 243, and Hill & Redman's Law of Landlord And Tenant, 11th edition, paragraph 113). This view would also appear to receive support at first sight from the fact that in neither Coe v Clay nor is Jinks v Edwards did the tenants claim relief under either an implied covenant for quiet enjoyment or an implied covenant for title; in each case they rested their claim on the duty of a landlord, implicit in the relationship into which he enters with his tenant, to put the tenant into possession at the beginning of the tenancy; and it was on that ground and no other that the court awarded damages. I think, however, that even apart from the question, already mentioned, of suing on the covenant for quiet enjoyment before entry, this point is sufficiently answered by the fact that in neither of these cases was a formal lease executed by the landlord; in Coe v Clay the letting was oral, and in Jinks v Edwards the tenancy arose out of an agreement for a lease. It was held in Bandy v Cartwright (volume 8 Exchequer, page 913) and had for long been the law that no covenant for title is implied in oral lettings. The question whether a covenant for quiet enjoyment should be implied in parol lettings and in mere agreements was an uncertain one over a period of many years, and it was not until Markham v Paget (1908 volume 1 Chancery Division 697) that Mr Justice Swinfen-Eady after a review of the authorities, decided definitely that it should.[22]In these circumstances it may well be that the actions in Coe v Clay and Jinks v Edwards were not brought or decided on an implied covenant for quiet enjoyment or title because it was thought that no such implication existed or could be relied on in view of the informal character of the lettings which were there in question. For myself, I do not think that there is any ground for implying the Coe v Clay obligation in addition to the covenant for title and quiet enjoyment which is implicit in a formal instrument of demise or grant. By the very force of the liability which is imposed on a lessor under the covenant for quiet enjoyment, the tenant is entitled to be put into possession of the premises which are leased to him at the outset of his tenancy ( Ludwell v Newman volume 6 Durnford & East, page 458) and to remain quietly in possession thereof throughout the term. Mr Plowman relied on the statement by Mr Justice Chitty in Wallis v Hands at page 84 of the report that "… the essence of a breach of a covenant for quiet enjoyment in a lease appears to me to be a disturbance of the lessee's possession."[23]I do not, however, think that Mr Justice Chitty was intending to say that the covenant does not begin to operate until the tenant has obtained possession, for it is quite clear that it operates from the moment when the demised term starts to run.[24]There is, in my opinion, no necessity, therefore, for implying the Coe v Clay obligation in a formal demise, and I would accordingly have felt considerable difficulty in implying it in the underlease even if no express covenant for quiet enjoyment has been incorporated. Even, however, if I am wrong in that, I am quite clear that any such implication is excluded by reason of this express covenant on the principle of Line v Stephenson .[25]Mr Plowman rightly said (and this was his alternative way of putting the point) that an express covenant will operate only to displace an implied covenant if they both cover the same ground - or, in other words, if they are in pari materia (Norton On Deeds (2nd edition, page 601). This is true, but it appears to me, as I have already indicated, that the purpose of the Coe v Clay obligation is fully covered by the covenant for quiet enjoyment which is implied from the word "demise". Such a covenant entitles the tenant to be put into possession as well as to remain in possession thereafter, and this is exactly the purpose of the obligation which was implied in Coe v Clay . In any case I find it impossible to regard a covenant to put the lessee in possession at the beginning of the term as being otherwise than in pari materia with a covenant that he should remain in possession thereafter. It was not suggested that the form of the express covenant in clause 3 sub-clause 3 of the underlease is of narrowers scope than a covenant for quiet enjoyment which is implied from the word "demise", and it accordingly follows that this covenant also answers the purpose of the obligation in Coe v Clay .[26]In these circumstances it is not possible, as I think, successfully to contend that if, contrary to my own view, the obligation upon which the appellant relies can be incorporated by implication in a formal lease, it can survive the eliminating effect of an express covenant for quiet enjoyment such as that which is contained in the underlease.[27]In my judgment, accordingly, the learned judge came to a correct conclusion in this case, and the appeal should be dismissed.

ORDER

Appeal dismissed with costs. Leave to appeal to the House of Lords refused. THE MASTER OF THE ROLLS : In this case I have had the advantage of reading in advance the Judgment which Lord Justice Romer has prepared. I agree with it, and do not desire to add anything of my own. LORD JUSTICE BIRKETT : I, too, have had the same opportunity and I make the same observations as those made by my Lord. ORDER: Appeal dismissed with costs. Leave to appeal to the House of Lords refused.

Cited in 9 later judgments