Mulvaney v Gough and Jackson [2002] EWCA Civ 1078

Court of Appeal

Basic Facts: C lived in a cottage with communal garden rights. D demolished a flowerbed C had tended to build a path.

Issue for the Court: When is an easement capable of being granted?

Held: The court decided that an adverse possession claim could not succeed where the land was subject to an equitable interest protected by trust.

• Latham LJ held that: The right to use land as a communal garden can be granted as an easement if the intention of the parties was to create such a right. D should have given C the chance to move the flowerbeds before modifying the land.