This page contains two cases:

  • Effect on easement contained in lease when it merges with the freehold - Wall v Collins
  • Effect on easement where use made impossible by statutory obligation - Jones v Cleanthi

Easement appurtenant to lease

Effect of merger with freehold

Wall v Collins

[2007] EWCA Civ 444

Carnwarth LJ at para 16 and 18:

    " .. merger of the lease into a larger interest in the dominant tenement is not in itself fatal to the continued existence of the easement, for the period for which it was granted. The dominant tenement remains unchanged and there is no legal impediment to the continued enjoyment of the easement by the occupier for the time-being of that tenement.. .. Mr Foster accepts, as I understand him, that in respect of the servient tenement, the merger of the leasehold with the freehold would not remove the burden of the easement, at least for the period of the original lease. This seems right as a matter of common sense. The owner of a servient tenement should not be able to escape the burden of an easement by dealings to which those interested in the dominant tenement are not parties. Equally, as a matter of common sense, it is difficult to see why a lessee should be worse off, so far as concerns an easement annexed to the land, merely because he has acquired a larger interest in the dominant tenement."

Hooper LJ agreed with Carnwarth J simply adding:

    "There must be many properties, particularly in urban areas, which share a similar history to that of number 231 Leigh Road. If the effect of a merger of a leasehold estate with a freehold estate was that any easements or covenants attached to the leasehold interest were thereby extinguished, the consequences would be literally disastrous for many people. Without easements it may be very difficult if not impossible to enjoy the benefits of land ownership".

Extinguishment of easement by exercise of statutory obligation?

Jones v Cleanthi

[2006] EWCA Civ 1712


The issue in this case was whether or not the carrying out of works pursuant to a statutory obligation which interfered with an easement extinguished that easement for all time. Held: No.


A lease granted the tenant of a flat an easement to use the rear area of the property to store rubbish and a right of access over the hallway to get to the rear area. However, a statutory fire safety notice was served on the landlord (under s352 of the Housing Act 1985) requiring him to build a wall. The notice put the landlord under a statutory obligation to build a wall that would thereby make it inevitable that the easement would be obstructed. At first instance the judge held that this brought the easement to an end. He considered that there was no longer any practical possibility of the easement benefiting the flat even though there were 74 years left to run on the lease. On appeal his decision was overturned.

The appeal decision

The principle to be applied was set out by Fry J in Yarmouth Corporation v Simmonds [1878] 10 Ch D 518 where he said:

    "when the legislature clearly and distinctly authorise[s] the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right".

However, in this case the fire safety regime introduced by the statute was directed not so much at the erection of permanent structures as with the minimising the risk of fire; and in particular the risk which prompted the inclusion of the wall related to the proximity of residential and commercial premises. If at some future time the retail use ceased there might no longer be a need to block the passage in order to maintain adequate fire precautions. Having regard to that and other factors including the principle at common law (re-enforced by the ECHR) that an Act should not be construed so as to injure or interfere with a person's rights without compensation unless the court is obliged so to construe it, the CA came to the conclusion that the statute did not impliedly authorise or require the expropriation of property rights once and for all, especially as there were 72 years left to run on the lease.

Thus, the easement was not permanently extinguished. However, in carrying out the works the landlord was acting in compliance with the statute so that no actionable wrong was committed by him that rendered him liable for breach of covenant under the lease. Parker LJ at para 92: "[In the absence of] any finding of negligence (and no such allegation is made), the fact that in erecting the wall [the landlord] was discharging a statutory obligation is a complete defence to any claim in nuisance..".

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