Derogation from grant: common honesty: giving with one hand and taking away with the other

In Johnston & Sons Ltd v Holland ([1988] 1 EGLR 264, CA (Eng)) L granted T a lease of a building but reserved a right to use the flank wall for advertising purposes.  T’s successor in title  later acquired the open land next to the flank wall and erected its own hoarding near the flank wall so as (intentionally) to obscure the flank wall and make it useless for advertising purposes. This was held to be a derogation from the grant made by virtue of the reservation. While the reservation could not prevent T from making use of the open land (including the erection of the blocking hoarding) it could prevent this being done for the purpose of frustrating the purpose underlying the grant:

‘Constructing a building is one thing. Erecting a blocking hoarding for the sole purpose of screening the flank wall or erecting one’s own advertising hoarding for the purpose of effectively taking over the advertising site for oneself is altogether different.’ (Nicholls L.J.)


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