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Phipps v Pears

[1965] 1 QB 76

Case summary last updated at 08/01/2020 15:55 by the Oxbridge Notes in-house law team.

Judgement for the case Phipps v Pears

Two houses, although rebuilt several times, had stood next to each other for many years in their present incarnations. Then one of them (D’s house) was pulled down, and left down. The result was that the wall of the one remaining (P’s house), which had been built abutting the other, and so not pointed on its outer face, was now exposed to the elements, making cracks in the wall. CA held that there was no easement to be protected from the weather. See 4 exceptions to negative covenant ban in Gardner (above)

Lord Denning MR: A right to support could be seen as a positive easement since the one house is leaning into its neighbour’s land. However this case is distinct and the right claimed is to shelter from the weather, not support. Such a right would be entirely negative and the law is wary about creating new negative easements. If the courts were to create an easement requiring sheltering one’s neighbour from the weather, it would hamper improvement to the servient land and one’s freedom to undertake legitimate projects. 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.

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