A 1982 transfer granted the right for the purchaser, and the tenants and occupiers of the property transferred, to use a loading bay on the retained land. The right was exercisable in common with the vendor, and was subject to a number of conditions. One of the conditions was that the right was exercisable only at such times and on such days as had been approved by the vendor. The vendor could from time to time, at its discretion, alter the times and days, provided that the purchaser was entitled to use the loading bay for at least half of the working week (defined as 9am to 5pm Mondays to Fridays).

The property with the benefit of the easement was bought by the defendants, and the retained land (including the loading bay) was bought by the claimant. A dispute arose as to the defendants' use of the loading bay. The claimant alleged that vehicles belonging to the defendants, or their tenants, frequently parked at the entrance to the loading bay, blocking the claimant's access to its premises.

The claimant wrote to the defendants, asking them to use the loading bay only between 10am and 12 noon, and 2.30pm to 4.30 pm. The claimant sought an injunction against the defendants.

The defendants argued initially that, on the proper construction of the easement, only the original vendor under the 1982 transfer had the right to set the hours of use of the loading bay. This argument relied on the fact that the definition of "vendor" in the transfer did not include successors in title.

This was rejected by the court. It would be absurd if successors in title, to whom the hours of operation of the loading bay may be of importance, could not exercise the right, while the vendor, who no longer retained any interest in the land, could still stipulate the hours of use.

The defendants then argued that the claimant was estopped from imposing restrictions on the hours of use of the loading bay. This was on the basis that the claimant's predecessor in title had never imposed any limitations and so until the claimant bought the land the loading bay could be used at all times. This argument was also rejected by the court.

On the facts of the case, the court found that the defendants themselves had not used the loading bay outside the permitted hours. However, the claimant alleged that the main culprits were in fact the defendants' tenants. The court therefore had to decide whether the defendants were liable for the trespasses of their tenants.

The court considered the case of Field Common Ltd v Elmbridge Borough Council (reviewed in October's edition of property update). A landlord is not normally under a duty to stop his tenant from trespassing on a third party's property. However, it is different if the landlord expressly permits, or encourages, the tenant to trespass.

None of the leases which the defendants had granted to their tenants contained an express right to use the loading bay, and section 62 of the Law of Property Act 1925 (which deems all easements enjoyed with the landlord's interest to be included in the lease) was excluded from the leases. The court therefore concluded that the defendants were not liable for the actions of their tenants. The enforcement of any rights in relation to the loading bay against the tenants was a matter for the claimant, not the defendants.

Things to consider

This case is interesting for two reasons. First, it is reassuring confirmation that provisions which contemplate a variation in the hours of use of an easement are enforceable and may be taken advantage of by successors in title. Secondly, the case reviews the extent to which a landlord is liable for the actions of its tenants. In Field Common, the landlord was found to be liable for its tenants' trespasses. In that case the landlord had laid tarmac on the area over which the trespass was occurring. The court held that this was an encouragement to the tenants to trespass. In addition, a number of the leases contained an express right to use the relevant area. In the present case, in the absence of a clause in the lease entitling the tenants to use the loading bay, the landlords were not liable.

Trustees Ltd v Kyriacos Papakyriacou and Dina Papakyriacou