Cases - Jones v Cleanthi
Record details
- Name
- Jones v Cleanthi
- Date
- [2006]
- Citation
- EWCA Civ 1712
- Legislation
- Keywords
- Commercial property - landlord and tenant - easements - conflicting rights
- Summary
-
The freeholder of a building built a wall, pursuant to notice served on him under the HMO (houses in multiple occupation) legislation. The existence of the wall prevented the tenant from exercising her right (granted to her in her lease) to use the communal refuse bins at the rear of the building. The freeholder argued that the tenant’s right to use the communal refuse bins had been extinguished, because the wall absolutely obstructed the easement.
The Court at first instance held that the easement had indeed been extinguished, and said that the fair and reasonable test as to whether an easement was extinguished was whether there was no longer any possibility of the easement, the covenanted right, ever again benefiting the dominant tenement in the way that had been intended by the grant. The freeholder was under a statutory duty to build the wall, and the wall was physically inconsistent with the tenant’s right of access to the rear area. There was no longer any practical possibility of the easement benefiting the tenant’s flat, and accordingly it had been extinguished. However, because the freeholder was under a statutory duty to build the wall, this was a good defence to the claim for relief to enforce the easement.
On appeal to the Court of Appeal, Lord Justice Jonathan Parker, giving the judgment of the Court, said that the test to be applied to determine whether an easement had been extinguished consisted of two parts:
- Whether the easement would be extinguished if, on the true construction of the relevant statutory regime, the effect of doing the act authorised by parliament is to appropriate property rights that are inconsistent with the doing of that act. If so, then the rights are extinguished;
- Otherwise, practical considerations may come into play.
So far as the first part of the test was concerned, LJ Jonathan Parker was not satisfied that the relevant legislation had authorised the absolute and permanent termination of the tenant’s right. He then looked at practical considerations - as the lease had 72 years left to run and a change of use of the building or change of legislation might allow the rights to become exercisable again, the easement had not been extinguished. However, the landlord had committed no actionable wrong against the tenant by complying with his statutory obligations to build the wall, and accordingly the landlord was successful, both at first instance and on appeal.