The end of an easement?

An easement can be rendered un-exercisable as a result of the need to comply with a statutory obligation, and yet remain in existence, but the tenant does not have any remedy for interference with the right.

The case in question concerned the tenant of a flat, who has a right to access the bin storage area at the rear of the building. The local authority served a statutory notice requiring the landlord of the building to carry out works to make the building fit for a number of occupants, which included the erection of a wall at the rear of the building. The landlord built the wall as required, and thereby blocked off the tenant’s access to the area. The tenant sought a declaration that she was entitled to her right of access and an injunction requiring removal of the wall.

The Court of Appeal concluded:

• The notice imposed a statutory obligation on the landlord to carry out the works, which plainly implied a statutory power to perform the obligation.
• The fulfilment of a statutory obligation, which renders an easement un-exercisable, extinguishes the easement if Parliament, on a true construction of the legislation, authorises the extinguishment.- which it did not [in this case]. The Court therefore turned to practical considerations. and the right to the easement was upheld, as there was a practical possibility of the right reviving at some time during the remainder of the term of the lease.
• Where a landlord is discharging a statutory obligation that breaches rights under a tenancy, he has a complete defence to any liability to the tenant for nuisance or breach of contract arising under a lease.

Even though the court upheld the existence of the easement rendered un-exercisable by the carrying out of a statutory obligation, this is of limited significance to a tenant who has no actionable rights against a landlord that interferes with this right. However, the easement may be of practical significance to the tenant if the statutory requirements alter in the future, and the rights become exercisable once more.

Further reading: Jones v Cleanthi [2006] EWCA Civ 1712