Phipps v Pears [1964] EWCA Civ 3; [1965] 1 QB 76
Negative easement of protection against the weather by a neighbour’s house
Facts
Phipps owned No. 16 Market Street, Warwick. An earlier owner had rebuilt it with its wall touching the wall of No. 14, but without bonding the two walls together. The exposed side of the new wall had never been pointed or rendered: its position against the neighbouring wall had made pointing impossible. The Governors of the Lord Leycester Hospital, who owned No. 14, demolished it in 1962 following the local authority’s demolition order. As a result, Phipps’s house became exposed to the elements and cracks appeared on the wall, as a result of exposure to the weather. Phipps started the action seeking compensation for the damage to his house, claiming that he had a right to have his house protected from the elements by the neighbouring house. Essentially, he claimed a negative easement which prevented the adjoining house from being demolished.
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Issue
The issue in this case was whether it was possible for the owner of one house to claim a right to have his house protected from the elements by another house and therefore whether a negative easement against an adjoining house being torn down could exist.
Decision/Outcome
The court rejected the claim and held that a mere loss of some benefit derived to one’s property by an action of his neighbour on his own property was not sufficient ground to claim a negative easement.
“Every man is entitled to pull down his house if he likes. If it exposes your house to the weather, that is your misfortune. It is no wrong on his part. Likewise, every man is entitled to cut down his trees if he likes, even if it leaves you without shelter from the wind or shade from the sun, see the decision of the Master of the Rolls in Ireland. There is no such easement known to the law as an easement to be protected from the weather.” (Lord Denning)
The Court of Appeal dismissed the appeal. The alleged right of support failed because the walls were independent. Section 62 of the Law of Property Act 1925 could not pass a right of protection from the weather, because it was not a right capable of being granted at law as an easement.
Other reports: [1965] QB 76; [1964] 2 WLR 996; [1964] 2 All ER 35.
