Easement: Existence ; ;Freehold owner seeking injunction to stop appellant using flat roof of property appellant claiming easement existing judge finding claim was for exclusive use of roof whether judge failing to properly consider all evidence whether claimed right was an easement appeal dismissed ;Hanina v Morland Court of Appeal: Aldous LJ, May LJ, Wilson J 22 November 2000 ;In 1992, the respondent (H) purchased the freehold of a three-storey mid-terrace property, comprising a shop/gallery on the ground floor and a maisonette on the second and third floors.

Since 1995, the respondent (M) had been the owner of the leasehold interest in the maisonette, which she held pursuant to a 99-year lease dated 1 October 1979.

;M had occupied the maisonette since 1989 as a subtenant and was told at that time that she was at liberty to use the flat roof of the gallery (the roof), for recreational purposes, as each previous occupant had done.

M therefore used the roof for entertaining, sunbathing and generally as an extension of her living room.

She continued to do so after the freehold was transferred to H in 1992.

However, in 1997, H took issue with Ms continued use of the roof and sought an injunction and damages for trespass.

M claimed that an easement existed, which had passed to her under section 62 of the Law of Property Act 1925 on the transfer of the lease in 1995.

;The judge held that M was effectively asserting a right to exclusive possession of the roof.

Thus, it amounted to a claim for a right that was not in the nature of an easement or that could be transferred by virtue of section 62 of the Act.

The judge went on to find that M had no right to use the roof and awarded H 500 in damages.

M appealed on the ground that the judge had failed to address her mind adequately or at all to the evidence concerning the nature of the right exercised by the occupants prior to the creation of the lease in 1979.

It was submitted that the occupants had been granted oral permission to use the roof and that an easement existed, which passed to M.

M also contended that damages should be reduced to a nominal sum.

;Held: The appeal was dismissed.

;Since 1979, occupants of the maisonette had exercised exclusive control of the roof and used it as an extension of the flat.

Access could not be obtained other than with the permission of the occupant of the maisonette.

Although the evidence of the previous freeholder was that he had control of the roof, it was for maintenance purposes only, not for leisure purposes.

The pre-1979 position was not fully explored before the judge.

There was no direct evidence as to the basis of the use prior to that date and no evidence of an oral permission.

There was nothing to suggest that there had been a change of user prior to 1979.

The judge had the evidence well in mind and was entitled to conclude as she did.

The right claimed by M was an exclusive and unrestricted one.

It was incapable of being included in the grant of the 1979 lease by virtue of section 62 of the Act: Grigsby v Melville [1972] 1 WLR 1355 and Copeland v Greenhalf [1952] Ch 488 considered.

;However, the appeal upon damages was allowed.

H was unable to refer to any specific damage that had been caused.

The award was to be nominal and reduced to 1.

;Simon Williams (instructed by Osbornes) appeared for the appellant; Michelle Stevens-Hoare (instructed by Rumke Joseph & Rabin) appeared for the respondent.