Posted on 30th August 2017
Dickinson v Casillas  EWCA Civ 1254
The parties are neighbours and have title to the freehold of their respective properties. The flank wall of the Mrs Casillas’ property is built along the boundary line with Mrs Dickinson’s property and the gas and electricity metres for Mrs Casillas’ property are built into that wall. The metres can, therefore, only be read from Mrs Dickinson’s property and Mrs Dickinson was of the opinion that Mrs Casillas had no right to go on to her property to read the metres or to inspect the flank wall to see if the repairs were needed.
Their properties were originally purchased from a developer, by their predecessors in title, and the freehold estate that is now owned by Mrs Casillas had originally been transferred from the developer to a Mr Duval and Miss Rains. At the date of that transfer, the house was still in the course of construction. The first schedule to the deed of transfer (‘the first schedule”) carried rights for the benefit of the transferees and their successors in title (which would include Mrs Casillas) and it was subject to rights and easements set out in the second schedule in favour of the developer and its successors in title to adjoining property (which would include Mrs Dickinson). The terms of the transfers of the two properties, from the developer to the original owners, were central to the issues in the case.
In 2007, Mrs Casillas built a porch to the front door of her property. The guttering on her porch would have overhung into Mrs Dickinson’s property but, before the porch was completed, Mr and Mrs Dickinson erected an iron and wood decorative feature which prevented the gutter being fixed. However, paragraph 3 of the first schedule (“paragraph 3”) allowed Mrs Casillas to erect gutters on buildings that overhang into Mrs Dickinson’s property. Mr and Mrs Dickinson argued, at first instance, that the right conferred by paragraph 3 only extends to the house and other buildings in the form they were constructed or were being constructed at the time of the transfer between the developer and Mr Duval and Miss Rains. Pursuant to this, they argued that the right does not permit Mrs Casillas to extend those buildings with gutters overhanging into Mrs Dickinson’s property (“the paragraph 3 argument”).
Pursuant to the above, Mrs Casillas issued proceedings seeking a declaration of her rights and an injunction to prevent interference with those rights.
At first instance, the learned Recorder found in Mrs Casillas favour and held that:
Mr and Mrs Dickinson appealed.
On appeal, Mr and Mrs Dickinson:
Lord Justice David Richards, with whom Lord Justice Longmore agreed, delivered the decision of the Court of Appeal and held that:
Although, Lord Justice David Richards acknowledged that the words “maintenance, repair and decoration” of a house does not obviously include reading its meters; he held that:
Further, with regards to the positioning of the gutters issue, Lord Justice David Richards held that the words “for the time being” in paragraph 3 were ambulatory words which envisage, and was intended to encompass, a changing state of affairs. Further, he held that the words refer to the state of facts which may exist in the future as well as the state of facts at the present time and on that basis they extend to the porch or other structures whenever built.
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 At paragraph 16