No easement where there is exclusive use

Hanina v Morland ((2000) 97(47) LSG 41) the freeholder of a house granted a 99 year lease of the first and second floors and retained the ground floor. The tenant used to make use of the flat roof above part of the retained ground floor as a kind of extension to the flat (for sunbathing and entertaining friends). The tenant then claimed an easement to use the roof  (on the basis of the English equivalent of CPO s.16). The claim failed because it was a claim to exclusive use of the roof and so was not capable of being an easement.

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