E R Ives Investment Ltd v High

A successor in title cannot retain a continuing benefit over neighbouring land while rejecting the corresponding burden on which that benefit was granted. Where an owner knowingly permits another to incur expenditure in the reasonable expectation of continued access, proprietary estoppel may require that access to be preserved.

By a majority, rights arising solely through mutual benefit and burden or acquiescence were not equitable easements requiring registration under the Land Charges Act 1925. All three members of the court agreed that an estoppel could bind a purchaser with notice. Permissive occupation under the parties’ arrangement did not create a tenancy at will or confer title by limitation.

The respondent permitted a neighbouring builder’s foundations to remain beneath his land in return for vehicular and pedestrian access across the neighbour’s yard. Successive owners recognised that access. With their knowledge and encouragement, the respondent built a garage which could be used only by crossing the yard.

The appellant company purchased the flats with express notice of the asserted right of way. It nevertheless sought an injunction restraining its use because the right had not been registered under the Land Charges Act 1925. The respondent relied on the original agreement, mutual benefit and burden, acquiescence and estoppel. He also disputed the appellant’s countervailing claim to title by limitation over the land occupied by the foundations.

His Honour Judge Carey Evans dismissed the action in Norwich County Court. The central questions were whether the appellant could retain the foundations while denying access, and whether the statutory registration scheme defeated the respondent’s equitable protection.

1. Appeal dismissed unanimously. The oral arrangement made in 1949 was complete and binding. The contemplated involvement of solicitors concerned the reduction of an existing agreement into formal form; it did not make the arrangement conditional upon execution of a further document.

2. Lord Denning MR and Danckwerts LJ held that the appellant could not retain the continuing benefit of foundations projecting into the respondent’s land while rejecting the corresponding obligation to permit access across its yard. The benefit and burden were reciprocal and conditional. Access had to continue for so long as the foundations remained.

3. The respondent also acquired equitable protection through acquiescence and proprietary estoppel. He built his house and garage in reliance on the agreed access. The intermediate owners knew of and encouraged that reliance, preserved the opening to the yard and accepted his contribution to resurfacing costs. It would be inequitable to defeat the expectation which their conduct created. A purchaser taking with notice was bound by that equity.

4. Lord Denning MR and Danckwerts LJ held that rights arising through mutual benefit and burden or acquiescence were not “equitable easements” within Class D(iii) of the Land Charges Act 1925. That expression concerned proprietary interests formerly capable of creation at law but taking effect only in equity after 1925. The respondent’s rights therefore survived without registration. They were not estate contracts because there was no contract to convey a legal estate.

5. Winn LJ reached the same result by a narrower route. He considered the contract to grant an easement, and the resulting equitable easement, void against a purchaser for value because it was unregistered. Nevertheless, the appellant was bound by the distinct estoppel arising from the previous owners’ representations and the respondent’s detrimental reliance. An estoppel was not itself registrable and could prevent the appellant from asserting an otherwise valid statutory defence.

6. The foundations remained by permission under a licence. No tenancy at will was intended or created, and permissive occupation could not establish title by limitation. Winn LJ would declare that the foundations constituted an actionable trespass unless the stipulated right of way remained available. The appeal was dismissed with costs, including the costs of the respondent’s notice. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: The appeal was dismissed unanimously with costs. Leave to appeal to the House of Lords was refused. The court upheld the respondent’s continued access and rejected the asserted title by limitation.

2. Norwich County Court: His Honour Judge Carey Evans dismissed the appellant’s action on 28 April 1966 and decided in favour of the respondent.