Neighbouring properties – Leasehold interest in house – Lessor granting right of way along side of adjoining property – Leasehold subsequently merging with freehold – Whether merger extinguishing right of way – Whether right of way attaching to freehold – Appeal allowed
The appellant was the registered owner of the freehold of a semi-detached house and of a leasehold interest in land to the rear of his property (the back land). The respondents were the registered freeholders of the adjoining property. A dispute arose concerning the appellant’s claim to a right of way over a passageway that ran along the south side of the respondents’ property.
In 1910, the freeholder had granted a lease of an undeveloped site for a term of 999 years, on which the lessee had covenanted to build two houses. The passageway did not exist at that time. In 1911, the unexpired leasehold interest in the appellant’s house was assigned to M together with the disputed right of way. The lessee retained the leasehold interest in the respondents’ property.
In 1986, G acquired the freehold of the appellant’s property, claiming a right to the back land by adverse possession. The respondents had been registered as the first registered proprietors of the leasehold in their property in 1986, but they had not acquired the freehold until 1995, expressly subject to the 1910 lease. They remained the registered leasehold proprietors until 2004, when their leasehold title was closed. The leasehold title was then merged in the freehold.
In 1999, the appellant acquired the freehold of his property and the registered leasehold title to the back land, on which he built a garage. The freehold interest was not expressed to be subject to the lease, and the leasehold interest in the house was not separately registered.
The court held that, as a matter of law, the right of way granted by the 1911 assignment could attach only to the leasehold interest, which had ceased to exist by merger. The judge also rejected the argument that the right had become attached to the freehold by virtue of section 62 of the Law of Property Act 1925. The appellant appealed.
Held: The appeal was allowed.
The merger of the lease into a larger interest in the dominant tenement was not fatal to the continued existence of the easement. The dominant tenement remained unchanged and there was no legal impediment to the continued enjoyment of the easement by the occupier for the time being of that tenement.
An easement had to be appurtenant to a dominant tenement, but not necessarily to any particular interest. All that mattered was that the grantee had an interest that was at least co-extensive with the period of the easement. With regard to 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. The owner of a servient tenement should not be able to escape the burden of an easement by dealings to which persons interested in the dominant tenement were not parties. Equally, a lessee should not be worse off in relation to an easement annexed to the land merely because he had acquired a larger interest in the dominant tenement. Accordingly, the premise of the judge’s reasoning had been wrong and the merger of the lease in 1999 did not destroy the easement, at least to the extent of the 1911 grant: Golden Lion Hotel (Hunstanton) Ltd v Carter [1965] 2 All ER 506 distinguished.
Furthermore, section 62 supported the appellant’s argument that the right of way was not limited by the extent of his former leasehold interest. When the freehold interest in his property was sold to G by the common owner, access was a right or advantage enjoyed with the appellant’s property that could be the subject of an easement. Accordingly, in the absence of any indication of a contrary intention, it should in principle be treated as having passed with the freehold: Kent v Kavanagh [2006] EWCA Civ 162; [2006] 2 EGLR 127 considered.
With regard to the back land, even where the original dominant tenement had been extended, the easement might continue for the benefit of the enlarged property if the additional use was merely additional. In the present case, nothing indicated that the use of the garage on the back land was anything other than ancillary to, or an adjunct to, the ordinary residential use of the appellant’s property: Massey v Boulden [2002] EWCA Civ 1634; [2003] 1 EGLR 24; [2003] 11 EG 154 considered.
The appellant appealed in person; Ian Foster (instructed by Widdows Mason, of Westhoughton) appeared for the respondents.
Eileen O’Grady, barrister
