Published: Fri, 12 Oct 2018
Jones v Cleanthi  EWCA Civ 1712
Landlord and tenant; landlord erected wall blocking access to refuse bins; whether statutory obligation defeats easement
Jones was a tenant of a flat under a long lease. The agreement provided she had by way of easement access to, and the use of refuse bins at the rear of the property. The landlord’s predecessor in title received a s352 notice under the Housing Act 1985 from the local authority requiring he construct a wall to adhere to fire safety regulations. The wall was duly erected but it blocked off Jones’ access to the refuse area, and she sought declaratory and injunctive relief to assert her easement rights.
Jones argued the s352 notice did not necessarily carry with it a statutory power to comply with its contents when they interfered with her rights as a third party. She contended the landlord could have appealed the notice, or complied with its terms without interfering with her right of access. Even if he was obliged to construct the wall, this would still amount to an actionable breach of contract for which she could claim damages. Cleanthi argued the local authority was empowered to extinguish property rights in the interests of fire safety. A statutory obligation carries with it a statutory power to comply, and the works were strongly in the public interest. There was no actionable interference with a property right of a tenant where a landlord is complying with a statutory duty.
Jones’ claim was unsuccessful. The landlord was under a statutory obligation to erect the wall and it followed that he had the power to do so. In complying with his statutory obligations, he had, therefore, committed no actionable wrong against the tenants, and the statutory notice was a complete defence for the landlord.
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