Ives v High [1967] 2 QB 379

Key point
  • Lord Denning created the doctrine of benefit and burden in this case
Facts
  • High agreed with Ives’ predecessor in title that foundations of the Ives’ flats might remain on High’s land
  • In return, H could get access to his garage at the rear of his house (which was blocked by the flats) by crossing Ives’ land
  • The right of way (easement) was never granted by deed or registered
Held (Court of Appeal)
  • The Ives have the benefit of having the flat’s foundation in H’s land, so long as they take that benefit, they must shoulder that burden
Lord Denning MR
  • He who takes the benefit must accept the burden
  • 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
Commentary
  • Along with unregistered easements, the doctrine allows for the enforcement of a positive covenant against a successor in title
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