| Phipps v Pears | |
| Court: | Court of Appeal |
| Date Decided: | 10 March 1964 |
| Full Name: | George Edward Phipps v Pears and others |
| Citations: | [1964] EWCA Civ 3 [1965] 1 QB 76 |
| Decision By: | Denning MR |
| Concurring: | Pearson LJ Salmon LJ |
| Prior Actions: | Appellant also lost at first instance. |
| Subsequent Actions: | None. |
| Opinions: | "Held: But a right to protection from the weather (if it exists) is entirely negative. It is a right to stop your neighbour pulling down his own house. Seeing that it is a negative easement, it must be looked at with caution. Because the law has been very wary of creating any new negative easements. Held: 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. The only way for an owner to protect himself is by getting a covenant from his neighbour that he will not pull down his house or cut down his trees. Such a covenant would be binding on him in contract: and it would be enforceable on any successor who took with notice of it. But it would not be binding on one who took without notice. |
| Transcripts: | EWCA Civ 3 |
| Keywords: | Creation of negative easements; rule against creation of new types of easements; non-existence of general right to continued protection against weather |
Phipps v Pears [1964] is an English land law case, concerning easements. The case concerns walls other than those governed by the Party Wall Act. Party walls are those which are touch or are shared or agreed to be party walls. The court held the law will not imply or invent a new form of negative easement to prevent a neighbour's wall being pulled down which offers some protection (and no special agreement or covenant is in place).
The wall of a newly built house, at number 16 Market Street, Warwick, was very close to the adjoining one, number 14, and was not rendered to make it weatherproof nor well-reinforced to make it strong against wind. The house at number 14 was demolished. This left the wall of number 16 exposed. Cracks soon appeared. Number 16's owner claimed damages against his neighbour for repairing the wall. He pled for the court to find a new kind of negative easement (which would, by extension from analogous types of easement) forbid the earlier, neighbour's wall being pulled down.
Lord Denning MR held that there could be no new easement. To be recognised under the Law of Property Act 1925 section 62, the right has to be capable of existing as an easement.