• In the case of Ives v High 1967 2 QB 379, Lord Denning laid down the doctrine of benefit and burden.

Facts of the Case

  • A built a block of flats whose foundations encroached on B’s land.
  • In 1949 an agreement was reached between them that B would allow the foundations to remain in return for a right of way, with or without motor vehicles, across the yard at the back of the block.
  • In 1950 A sold his land and the block to C.
  •  In 1959, B, in reliance upon the agreement, built himself a garage which could only be entered over C’s land.
  • C complimented B on it and B used the yard for access for his car. In 1960 he contributed one-fifth to the cost of re-surfacing the yard. That same year the flats were sold to the claimant’s subject “to the right (if any) of the owners and occupiers” of B’s land “as now enjoyed to pass and repass with or without vehicles, over the open yard.” No registration under the Land Charges Act 1925 , was ever effected by B.
  • The claimants sought an injunction to restrain B from exercising a right of way across the yard.
  • The county court judge refused the injunction.

Issues in Ives v High 1967 2 QB 379

  • Was B entitled to a right of way?

Held by Court of Appeal

  • B entitled in equity to a right of way.

Lord Denning

  • Here it was stated that he who takes the benefit must accept the burden.
  • An equity arising out of acquiescence  that neither of those rights was an estate contract or equitable easement within the Land Charges Act 1925 s.10(1), Class C (iv), Class D (iii) and so neither was invalidated for want of registration; and that the Act had no impact on the equitable estoppel that had arisen.
  • When adjoining owners of land make an agreement to secure continuing rights and benefits for each of them over the land of the other, neither of them can take the benefit of the agreement and throw over the burden of it.
  • “In my opinion the plaintiffs as successors in title are bound by that estoppel. I do not regard myself as thereby saying anything contradictory of the proposition submitted to the court that the said equity or equitable easement, as distinct from the estoppel, was rendered void as against the plaintiffs by the statutes to which I D have referred. Estoppels arising from representations made by owners of land that rights exist affecting their land will, unless in form they are limited to the duration of the interest of the representor, bind successors to his title. It is no anomaly that a person should have a legally valid answer to a claim and yet be estopped from asserting that answer against the claimant; citation of E examples would be otiose and one should suffice: a tenant under a lease, in occupation, is estopped from setting up against his lessor, or an assignee, when sued by him for, e.g. rent, any denial that the lessor had an estate in the demised premises entitling him to grant that lease. Where estoppel applies, the person entitled to wield it as a shield has, ex hypothesi, suffered a past detriment or other F change of position; he is not asserting any positive right but is invoking law or equity to afford him procedural protection to avert injustice.” Pg. 45

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