Derogation from grant and the covenant for quiet enjoyment
Derogation from grant and the covenant for quiet enjoyment

The following Property practice note provides comprehensive and up to date legal information covering:

  • Derogation from grant and the covenant for quiet enjoyment
  • The rule against derogation from grant
  • The principles
  • Has there been a derogation?
  • Substantial interference
  • Retained land
  • Future use
  • Right granted for term of years
  • Overlap with letting schemes—residential properties
  • Overlap with implied easements
  • More...

The rule against derogation from grant applies in addition to any obligation of quiet enjoyment. It is not excluded by an express covenant for quiet enjoyment. There is a substantial overlap between the two, but there is a fundamental difference. The obligation not to derogate from grant runs with the land. If a landlord lets one property and sells the adjoining one, the buyer is not liable to the adjoining tenant on the covenant for quiet enjoyment as they are not, and have never been, its landlord. However, they are liable to the tenant on the obligation not to derogate from grant. The seller/landlord became bound not to derogate from its grant to the tenant in respect of the property it subsequently sold when it granted the lease of the other property to the tenant and the obligation runs with the land.

The covenant for quiet enjoyment focuses on the use by the tenant of the demised premises, whereas the obligation not to derogate from grant focuses on the use which the landlord makes of premises it retains.

The rule against derogation from grant

The rule against derogation from grant applies to the grant of easements and rights granted for a term of years, as well as to leases. The principle is that someone who agrees to confer a particular benefit on another must not do anything

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