Cases - Kennerley v Beech and another

Record details

Name

Kennerley v Beech and another

Date

[2012]

Citation

EWCA Civ 158

Keywords

Commercial property - landlord and tenant - easements

Summary

In 1954, the seller sold part of his garden to the buyer, reserving a right of way over a pathway that ran down the eastern side of the new house that was built on the former garden, where it joined another pathway. The second path was also within the title to the land that the seller had sold, however the seller had not reserved a right of way over this (and there was nothing to suggest that he had any prospect or intention of acquiring one).

The seller's tenant used the right of way for about 12 months to access the kitchen garden at the new house, but stopped using the right of way in 1955. The tenant's use of the kitchen garden had therefore depended on a licence from the buyer to use the second path. Without this, the tenant would only have been able to walk from the original house to the end of the first path and back. Between 1982 and 1984, the then owners of the new house carried out works that physically destroyed the northern part.

The Court of Appeal held that the right of way, as granted, had not constituted a valid easement. The right was exercisable over and along the first path, for the purpose of enabling the tenant to reach the kitchen garden. The issue in this case was whether the right of way ever accommodated the original house, given the right of way led only to the end of the first path and no further. Had the right of way connected two separate parcels of the land retained by the seller, it would have qualified as a valid grant. However, the right of way never enabled the seller (or the tenant) to walk from the original house to the kitchen garden. It only allowed the seller to walk to the end of the first path and back.

The High Court found that the only purpose of the right of way was to assist the tenant to get to the kitchen garden. The seller never had any entitlement to travel beyond the end of the first path. The tenant could only continue from the end of the first path, along the second path, to the kitchen garden, with a licence from the buyer. The right of way had therefore conferred a personal benefit on the tenant. It was not capable of permanently enhancing or benefiting the ownership of the original house.  As a result, the right of way was contractual only and was not enforceable against the buyer's successors in title to the house that had been built in 1955.