Derogation from grant is a common law concept requiring a grantor (the person who grants the benefit) not to do anything that substantially deprives the grantee (the person who has the benefit of the grant) from the enjoyment of the benefit granted for example an easement over land such as a right of way.
The doctrine is applied to many landlord and tenant matters where the obligation not to derogate from grant is implied into leases to stop landlords doing something that may have the effect of making the property less fit for the purpose for which the lease was granted.
In addition the doctrine of derogation of grant also applies where there is a grant of an easement. In this case the grantor is stopped from doing anything that substantially deprives the grantee from the enjoyment of the benefit granted by the easement.
However, the courts have stated that while the doctrine of derogation from grant requires the grantor not to take any action that deprives the grantee from exercising the easement granted it does not require any positive action to be taken by the grantor.
The case of Carter v Coles  EWCA Civ 398 concerned the sale of land by the Carters to the Coles. The Carters retained part of their land that was let to a water bottling company and reserved an easement over the land sold to the Carters to permit lorries visiting the retained land to gain access to and from the water bottling company’s plant on the land. The planning permission for the business required a visibility splay to be maintained.
There was an existing one in place when the sale was transacted. However, as a result of the Coles planting various shrubs and erecting a fence on the visibility splay that obscured the visibility splay the Local Authority refused to renew the planning permission with the consequence that the Carter’s tenants could not operate the business any longer from the land and left. The court held that the Coles’ action amounted to a derogation from grant as the planting of shrubs and the erection of the fence had the practical effect of preventing the use of the easement.
In Wheeldon v Burrows (1879) LR 12 Ch D 31 T sold part of his land to W and retained part on which a workshop stood. T later sold the retained land with the workshop to B. Two propositions were derived the case the first of which has come to be known as the rule in Wheeldon v Burrows which is when a landowner sells off part of his land and retains part, the conveyance will impliedly grant all the continuous and apparent easements over the retained land necessary for the reasonable enjoyment of the land sold. Second, there will be no retained reservation of easements over the land sold for the benefit of the retained land (save in exceptional cases such as easements of necessity). Both propositions are based on the maxim of non-derogation from grant.
Should you have a query regarding a possible claim for derogation from grant and wish to discuss the same please contact Joseph Quinn on 01392 248858.We have expertise in this area of law and will be able to help you with any claim.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.