Express covenant for quiet enjoyment leaves no room for the implied covenant

In Miller v Emcer Products Ltd ([1956] Ch. 304, CA (Eng)) a landlord granted a lease of ground floor premises and the right to use a lavatory on the second floor of the building. The lease contained an express covenant for quiet enjoyment but limited liability under it to actions of the landlord, the  superior landlord and people deriving title under the landlord. The tenants of the second floor (including the lavatory) did not fall into any of these categories. The second floor tenants locked the lavatory and refused to allow the ground floor tenants to use it. The ground floor tenants could not rely on the express covenant for title since it did not cover actions of the second floor tenant. They argued that it was a breach of the unqualified implied covenant for quiet enjoyment.

The English Court of Appeal held that the right to use the second floor lavatory was an easement attached to the ground floor lease and so the covenant could apply to it. Where, however, there was an express covenant covering the same ground as the implied covenant there was no room for the implied covenant (expressio unius est exclusio alterius). The implied covenant did not apply and there had been no breach of the express covenant (since it did not cover actions of the second floor tenants).

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