Phipps v Pears

An owner has no easement requiring a neighbour to retain a building or trees as protection from the weather. A claimed right of shelter is a negative easement which would impede a neighbour’s ordinary use and redevelopment of land. It is therefore not recognised by law. Protection must be secured by covenant.

Section 62 of the Law of Property Act 1925 passes only rights or advantages recognised by law and capable of grant with effect against successors in title. It cannot convert the practical benefit of shelter from an adjoining building into a proprietary right.

The claimant owned a newer house whose flank wall had been built against an older neighbouring house. The walls were independent and untied. When the neighbouring house was demolished pursuant to a local authority order, the claimant’s previously concealed wall was exposed to rain and frost and suffered damage.

The County Court rejected the claim based on withdrawal of support. On appeal, the claimant contended that the adjoining house had afforded a proprietary right of protection from the weather, alternatively that this advantage passed on a 1931 conveyance under section 62 of the Law of Property Act 1925. The central issue was whether the law recognised such an easement or advantage.

Appeal dismissed unanimously. Lord Denning MR delivered the reasons of the court. Pearson and Salmon LJJ agreed.

1. The County Court’s finding that the two walls were independent and that the claimant’s house did not depend on the neighbouring house for physical support disposed of the support claim. The established right to support was therefore not engaged.

2. There was no easement of protection from the weather. The asserted right would prevent an owner from demolishing a house on his own land merely because its removal exposed a neighbour’s wall. It was accordingly a negative easement, and the law is reluctant to recognise new negative easements because they restrain ordinary enjoyment and improvement of land.

3. The analogous absence of rights to a view, or to wind and air arriving through an undefined channel, supported that conclusion. The owner of land may demolish a building or cut down trees even though this removes shelter from a neighbour. The neighbour’s protection lies in a covenant, not in an easement.

4. Section 62 of the Law of Property Act 1925 did not assist the claimant. It passes only an easement, right or advantage recognised by law and capable of grant so as to bind successors, including purchasers without notice. Shelter provided by the neighbouring house was not such a right and did not pass under the section.

The claimant was ordered to pay the respondents’ costs of the appeal. Leave to appeal was refused.

• Court of Appeal — dismissed the claimant’s appeal from the County Court: [1965] 1 QB 76.
• Warwick County Court — His Honour Judge Lind-Smith rejected the claim based on withdrawal of support, finding that the adjoining walls were independent and untied.