Wall v Collins & Anor

An easement is annexed to the dominant land, rather than necessarily to a particular estate in that land. Merger of a leasehold estate into the freehold therefore does not extinguish an easement granted for the lease’s term.

Under section 62 of the Law of Property Act 1925, the decisive matter is factual enjoyment of a right with the conveyed land, rather than the title under which it was enjoyed. A conveyance of the freehold may consequently convert a right enjoyed under a lease into an equivalent right benefiting the freehold.

An easement may serve additional land where that use remains ancillary to the honest use of the original dominant tenement. Its exercise remains confined by the purposes and terms of the grant.

The appellant owned a house and adjoining Back Land containing a garage. The respondents owned the neighbouring house and South Road, a passage linking two public highways. A 1911 assignment of the appellant’s house had granted a 999-year right of way over South Road.

His Honour Judge Pelling QC held that the right was attached only to the leasehold estate and had been extinguished when that estate merged into the freehold in 1999. He also rejected arguments based on section 62 of the Law of Property Act 1925 and prescription.

The appeal concerned whether merger extinguished the easement, whether section 62 attached an equivalent right to the freehold, and whether the right could be exercised for the Back Land.

1. Appeal allowed. Carnwath LJ, with whom Hooper and Mummery LJJ agreed, held that the merger of the leasehold estate into the freehold did not extinguish the easement granted in 1911. The lower court’s contrary premise was wrong.

2. An easement must be appurtenant to a dominant tenement, but need not be attached to a particular estate in that tenement. A grantor cannot grant, and a grantee cannot receive, an easement exceeding their respective interests. That limitation determines the duration and reach of the grant; it does not make the easement inseparable from the grantee’s leasehold estate. The dominant land remained unchanged after merger, and the easement could continue for its original 999-year term.

3. Section 62 of the Law of Property Act 1925 independently attached an equivalent right to the freehold when it was conveyed in 1986. The relevant inquiry was whether the way was factually enjoyed with the house, rather than the legal title under which it was enjoyed. A right protected by a long lease was no less capable of passing than permissive use or a right enjoyed under a short tenancy.

4. Section 62 could not impliedly grant more than the common freeholder could have granted expressly. That limitation presented no obstacle. The existing easement already bound the leasehold interest in the servient property, while the implied grant needed only to bind its freehold reversion. After the 1986 conveyance, corresponding rights therefore affected all relevant leasehold and freehold interests.

5. The restrictive-covenant authorities did not determine the effect of merger upon an easement. The recent decision in Kent v Kavanagh [2006] EWCA Civ 162 supported the conclusion that a former tenant could continue enjoying leasehold rights while section 62 supplemented them with equivalent freehold rights.

6. The rejection of a prescriptive right for the Back Land was undisturbed. Nevertheless, use of the garage on that land was ancillary to the ordinary residential use of the house. The granted way could therefore serve it as an adjunct to the dominant tenement.

7. The lower court’s declaration was varied. The appellant, as owner of the house and Back Land, enjoyed a right of way over South Road only to the extent reasonably required for the convenient enjoyment of the dwelling. The grant did not authorise use for purposes adequately served by an equally or more convenient route.

1. Court of Appeal (Civil Division): In Wall v Collins & Anor [2007] EWCA Civ 444, the appeal was allowed and the declaration below was varied to recognise a limited right of way over South Road.
2. Chancery Division, Manchester District Registry: His Honour Judge Pelling QC held that merger had extinguished the right of way, rejected the section 62 and prescription arguments, and declared that the appellant had no right over South Road for either the house or the Back Land.