Property Law – Keith John Wall v Brian Collins & another

Area(s) of Law : Property Law
Court :
Source : EWCA Civ 444

Real Property
Right of Way; Merger of Leasehold and Freehold interests

Mr. Wall claimed a right of way over a passageway running along the south side of his property and over the property of the respondents. The existence of the right of way was not challenged, but it was said by Mr. and Mrs. Collins that any right Mr. Wall had in respect of it was extinguished when his leasehold interest in his property was converted into a freehold interest, because of the doctrine of merger. The judge agreed, and held that as a matter of law if a leasehold estate is merged with a freehold estate any easements or covenants attached to the leasehold are extinguished. The judge also held that as the right of way had been expressly granted by an assignment in 1911, it could only attach to the leasehold interest of what was being assigned. Mr. Wall appealed.

Held: The Court of Appeal reversed the decision of the lower court, holding that while an easement must be appurtenant to a dominant tenement it need not necessarily be appurtenant to any particular interest for the time being, and that merger of the lease into a larger interest in the dominant tenement is not in itself fatal to the continued interest of the easement for the period for which it was granted. Accordingly, section 62 of the Law of Property Act 1925 applied to the merger of the leasehold and freehold titles. The court declined, however, to consider whether this analysis also applies to restrictive covenants, suggesting that they had “…a different legal pedigree…” and “…[were] not necessarily subject to the same principles as easements”.