Correspondence
| Published date | 01 November 1964 |
| Author | J. F. Garner |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb02254.x |
| Date | 01 November 1964 |
CORRESPONDENCE
THE EDITOR,
The
Modem
Lmce,
Review.
PROTECTION
AGAINST
THE
WEATHER
Sir,
Mr. Wilkinson, in his note on Philrp.9 v. Pears
at
(1964)
27
M.L.R.
614,
takes issue with the decision of the Court
of
Appeal
on
each
of
the three
grounds
of
“
novelty,
indefinition and undue restriction.”
So
far as novelty
is
concerned, Mr. Wilkinson seems to have ignored the
well established distinction between positive and negative easements
(Bale
on
Ease~nts,
13th
edition, at p.
31).
Re
E’llenborough
Park
[1956]
Ch.
131
certainly, in confirming earlier decisions, made it clear that the list
of
positive
easements was not closed-in
Re
Wetbb’s
Lease
[1951]
Ch.
808,
even
a
right
to display advertisements in no way relevant to the dominant tenement was
apparently recognised as an easement-but
it
was generally thought, with
Gale, to be unlikely that new positive easements would be recognised. The
right claimed in Phipps v. Pears, to require a servient owner to “weather-
proof
”
a wall on the dominant tenement, would be, one would have thought,
just the kind
of
right that should
not
be recognised as an easement, certainly
not when arising from an “implied” right. Exactly how much weather-
proofing would be required, and how often should itl be renewed? Weather-
proofing is not
ejmdm
gene+
with support, and short of replacing the
demolished building, how could the servient owner be sure that he was
satisfying his obligation? If such
a
right were created by express grant, it
would almost certainly be expressed
as
a
positive covenant, and the draftsman
would certainly feel obliged to define the servient owner‘s duties with very
considerable precision.
Upjohn.
v.
Seymour
Estaks
(reported
at
[1938]
1
All E.R.
614,
and not
at
[1938]
2
All E.R.
614)
is not, it isJ submitted, any authority
at
all
on the
question of weatherproofing; in that case support
was
withdrawn, and the
consequential exposure to the weather caused the dominant tenement to suffer
damage, but in
Phipps
v. Pears there was
no
question
of
any
withdrawal
Of
support.
Perhaps
a
right to require weatherproofing of the dominant tenement, if
expressed
as
a
positive covenant, should be made enforceable against succes-
sive owners
of
the servient land, as may be suggested to the Departmental
Committee currently considering this subject. This doe not, however, lead
to the conclusion that such
a
right should also be recognised as an easement;
an argument could be made out
for
a
complete fiision
of
the rules relating to
restrictive covenants and positive easements, but even this has not yet been
accepted in our legal system.
University
of
Nottingh.
J.
F.
GARNER.
768
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