Wall v Collins [2007] EWCA Civ 444

       Doctrine of merger of leasehold and freehold interests, extinguishment of easements


The appellant asserted that he had a right of way over a track which passed over one part of his property, as well as into and through the property of the respondent. The respondent did not in fact assert that the right of way did not exist. However, the respondent argued that while the appellant may have had such a right in the past, when his interest in his own property was converted from a leasehold into a freehold interest, his rights were extinguished. This argument was based on the doctrine of merger. At first instance, the respondent was successful, with the court finding that a merger between a leasehold and a freehold estate destroys any covenants or easements which are attached to the leasehold interest. Further, the right of way could only attach to the leasehold interest because it had been granted by assignment in 1911. This decision was appealed.


The issue in the case was whether the doctrine of merger applied and whether the appellant’s easement was extinguished when his interest was converted from a leasehold into a freehold interest.


It was held that the lower court had erred in its judgement. The court held that  even though an easement must be appurtenant to a dominant tenement, this does not apply to any particular interest at a specific time and therefore that merging a leasehold interest into a freehold interest does not automatically extinguish the easement. The court did not extend that reasoning to covenants however.

" .. merger of the lease into a larger interest in the dominant tenement is not in itself fatal to the continued existence of the easement, for the period for which it was granted. The dominant tenement remains unchanged and there is no legal impediment to the continued enjoyment of the easement by the occupier for the time-being of that tenement..” (Carnwarth LJ)