• In the case of Green v Ashco Horticultural 1966 1 WLR 889 it was found that no implication by grant of an easement could be made under s.62 Law of Property Act 1925 if the right enjoyed prior to the conveyance was only temporary.

Facts of the Case

  • In 1959 G, the tenant for a greengrocer’s shop, took a second renewal of the lease originally granted to him in 1931 for a further term for 21 years from May 25th, 1959, on the same terms as previously except for rent.
  • On November 3rd, 1959, the lessors, B.Ltd., conveyed the freehold reversion of the shop to the defendants together with other property at the rear and side of the shop premises, including a narrow passageway leading from the street on which the shop fronted past a courtyard at the rear of the shop premises and eventually to garages, one of which was let to G.
  • On December 23rd, 1963, G issued a writ claiming that he had a right of way down the passageway and through the courtyard to the back of his premises, having used this ever since he became tenant in 1931 as the sole means of access to the rear fo the shop, parking and unloading vehicles in the passageway and taking the goods via the courtyard to the shop and he alleged that this right of way had been obstructed.
  • The evidence showed that until 1960 there were green gates between the passageway and the courtyard which were only open during business hours and G. had often had to ask B.Ltd’s employees to unblock them; further, there were occasions when G.  was not allowed to use the passageway because B.Ltd wanted unlimited access for their own business use.
  • The lease to G. reserved unlimited power to the lessor to deal with the land and premises adjoining that demised, including power to build without regard to the diminution in light or air enjoyed by the lessee which might result.
  • On December 7th 1964, G. assigned his lease to Mr. and Mrs. C. and they were joined as claimants to the action.
  • The claimants contented that they were entitled to a right of way by virtue of section 62 of the Law of Property Act 1925, and claimed a declaration accordingly.
  • The defendants contended first that the clause in the lease, referred to above, was an expression of contrary intention and that the section, therefore, did not apply, and secondly that the plaintiff’s user had been by permission and of such a character as to prevent the section operating.

Issues in Green v Ashco Horticultural 1966 1 WLR 889

  • Could the claimants successfully claim that the use of the passageway be held as an easement.

Held by High Court (Chancery Division)

  • No easement implied

Cross J

  • It was held that on the true construction of the clause and read as a whole, it was confined to easements or quasi easements of light and air, and did not apply to the present question.
  • “It may well be that as the small van and the trolleys would not have caused any obstruction of the passageway they would have acquiesced in the user and Green would have obtained a legal right under section 62. But there is no certainty about this. The evidence showed that on occasions Billings Ltd. mixed horse fodder in the entrance to the courtyard. On such occasions the van could not have been parked there, nor could Green’s men have trolleyed his goods in—though they might, I suppose, have carried goods in by stepping round or over the fodder. On occasions of this sort there might well have been trouble, even though Green never used a large lorry which blocked the passageway, and the trouble might have led to the same sort as I find was given in this case, namely, a consent which reduced the privilege enjoyed to something which could not be the subject of a legal easement. For those reasons, therefore, I hold that the alternative claim also fails, and it follows that the action must be dismissed.” P.11

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