Property Law Term 2 PDF

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Week 1 – Easements 1Introduction to Easements – Section 1Key questions:a. Can the alleged right be an easement? b. If yes, has the easement been acquired? c. If yes, is it enforceable?Easement: A nonpossessory right to use and/or enter onto the real property of anotherwithout possessing it. These ar...

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Week 1 – Easements 1 Introduction to Easements – Section 1 Key questions: a. Can the alleged right be an easement? b. If yes, has the easement been acquired? c. If yes, is it enforceable?

Easement: A nonpossessory right to use and/or enter onto the real property of another without possessing it. These are not personal rights, but are rights between estates (the dominant estate and the servient estate) Positive Easement: Gives the grantee the right to do something on the grantor’s land, e.g. travers across, lay drainage pipes, park, washing line, use lavatory, coal shed Negative Easement: Allows the grantee to receive something from the grantor’s land, e.g. light, air, support) Profit a prendre (not strictly speaking an easement): Allows the grantee to take natural produce from the grantor’s land (e.g. fish, apples, firewood) Terminology Dominant tenement/land – the estate benefiting from the easement Servient tenement/land – the estate burdened by the easement Grantor - owner of servient land (burdened by easement) Grantee – owner of dominant land (benefits from easement)

Equitable Easements: Only bind purchasers who had knowledge of their existence, whereas legal easements bind all third parties regardless of knowledge. Equitable easements arise in a number of ways: 1. If the grantee only has an equitable estate 2. If the easement does not come within the definition of a legal easement provided by s1(2) of the LPA 1925 o Duration of easement must be for a definite period or an indefinite period of years  If an easement for life is created, being neither for a definite or indefinite period, it would be equitable 3. If the easement is not by deed where title is unregistered 4. If land is registered, legal easement must be registered  If a deed is not used, then the grant may be ineffectual Similar Concepts 5. License: Personal permission that can allow a person to use another person’s land without committed a trespass. Personal – do not bind third parties. If an activity does not amount to an enforceable easement, it may still be a licence if conducted with the permission of the servient owner. In this case though, the permission would not bind successors in title of the servient owner nor benefit successors in title of the dominant owner unless renewed by the new parties.

6. Natural Rights: These limited rights enable landowners to claim support from neighboring land or water flowing naturally in a river or stream. 7. Way-leaves: Rights given by statute to utility companies to enable them to run services over private land in order to supply gas, electricity, water and sewage services (e.g. Gas Act 1986). 8. Public Rights: these do not depend on owning land. One example, is the right we have to use public roads and footpaths. Some rights are often given to the public by statute (for example, the rights of public access to some areas of private land under the Countryside and Rights of Way Act 2000). 9. Profits a Prendre: a private right that permits someone to go on to another’s land to take natural produce (for example, fish or firewood). These are very similar to easements except they do not need to be attached to a piece of land (they can exist ‘in gross’). 10. Restrictive Covenants: these are equitable proprietary interests which bear close similarities to easements and will be considered in depth elsewhere in the course. Restrictive covenants can bind third parties and are aimed at regulate the user of a particular piece of land for the benefit of an adjacent piece of land.

Nature of an Easement – Section 2 Key Question: Can the alleged right be an easement known to law?

KEY CASE: Re Ellenborough Park [1956] Ch 131, Court of Appeal Facts: In 1855, a piece of land in Weston-super-Mare, known as the Whitecross Estate, was being redeveloped for building purposes. The land included a piece of open parkland, known as Ellenborough Park, enclosed by a road known as Crescent Road. Over the course of the 1850s, 1860s, and 1870s, the owners of the Whitecross Estate sold plots of land on Crescent Road to various purchasers. They granted each purchaser ‘the full enjoyment … of the pleasure ground set out and made in front of the said plot of land … in the centre of the square called Ellenborough Park’. The park itself was purchased by one William Henry Davies in 1879 and he left his title to it on trust for the beneficiaries under his will. During World War II, the park was occupied by the authorities for military purposes. The War Office paid some money to the Ellenborough Park trustees as compensation for taking over the use of the park. In 1954, the trustees brought an action in the Chancery Division seeking guidance on how to distribute the compensation money. They asked, among other things, for a declaration whether the owners of the Crescent Road houses had any enforceable rights to use the park that might entitle them to a share of the compensation. Danckwerts J declared that they did, holding that the right to use the pleasure ground was a valid legal easement. One of the beneficiaries under the trust appealed to the Court of Appeal.

Judgement: Appeal Dismissed  Right to use the pleasure ground counts as a valid easement

4 Criteria of Easements

 1. There must be a dominant and servient tenement  2. The dominant and servient tenements must not be owned and occupied by the same person  3. The right must accommodate (benefit) the dominant tenement  4. The right must be capable of forming the subject matter of a grant:  

(i) There must be a capable grantee and grantor (ii) The right must be sufficiently definite

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1. There must be a dominant and servient tenement Any easement must benefit an estate in land (freehold or leasehold): it cannot exist ‘in gross’. (A profit, however, can exist in gross). Sturley (1980) has suggested easements should be permitted to exist in gross. The Law Commission, in its review in 2008, did not suggest this reform. (see MHN 4 th edn p888-889). Both the dominant and servient tenements must be identifiable when the easement is created An easement which benefits one piece of land cannot be used to service another piece of land owned by the grantee. This is the rule in Harris v Flowers (1904) 74 LJ Ch 127 which holds that ‘if a right of way be granted for the enjoyment of Close A [in other words - dominant tenement A] the grantee because he owns or acquires Close B cannot use the way … for passing over Close A to Close B’ (page 127). It is permissible to use the way to get to Close A and from here travel to Close B as an incidental journey but it is not permitted to use the way to travel to Close B as its primary purpose (using Close A as incidental to get to Close B). Where the use would qualify as an easement but for this requirement, then it is considered a quasi-easement and can mature into an easement once the tenements come into separate ownership.

2. The dominant and servient tenements must not be owned and occupied by the same person Landowners cannot have an easement over their own land (Roe v Siddons (1889) 22 QBD 224, 236) A landlord and a tenant can have easements over each other’s estate (NB a licensee has no estate and therefore cannot have the benefit or burden of an easement, although they may have licenses that bind the parties themselves) If one person buys both the dominant and servient land, the easement will be extinguished

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If one person occupies (but does not own) both the dominant and servient land, the easement will be suspended during this period of common occupation Canham v Fisk [1831] The Law Commission (2011) has recommended that this rule be modified to enable easements to be created where the dominant and servient land have different registered title even where they are owned by the same person. This was suggested to assist developers of housing estates to create easements over plots before the plots are sold to purchasers.

3. The right must accommodate (benefit) the dominant tenement There must be sufficient proximity between the dominant and servient land in order to demonstrate that the easement benefits the dominant land but the lands need not be adjacent (Re Ellenborough Park) The right must benefit the owner in his capacity as owner of the land rather than in his personal capacity. This can be tricky to determine. It involves considering both the nature of the right claimed and the dominant tenement itself. An increase in economic value of the dominant land, whilst influential, is not the sole yardstick. The issue is whether or not the normal enjoyment of the land is enhanced, which is a question of fact to be determined by considering both the nature of the dominant land and the right itself. This third requirement presents problems where the activity could be considered purely: o Commercial o Recreational

TRICKY TOPIC: Commercial easements Where the dominant tenement is used for business purposes, a right that facilitates that business use can exist as an easement. Where the use of the servient land is deemed to be a purely commercial benefit to the landowner, with no connection to the character of the dominant land, the use will not be recognised as an easement. Consider the following 2 cases: Hill v Tupper [1863] 159 ER 51, High Court (Exchequer Chamber) No easement  Exclusive right to put pleasure boats on a canal for profit did not amount to an easement as it benefitted the owner of the land exclusively, and not the land of the owner itself – right to have the sole and exclusive use of land covered by water was not an established right in law, and new types of incorporeal rights in property could be created at will. Overall, the right here was not connected to the land Operation of numerus clausus principle: Court not allowing the creation of a new property right on the sole basis that it would be new

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C could not sue trespassers as he was only leasing the land, and therefore had no proprietary right. Court suggested that C could instead sue the licenser, requiring that he assert his property right against any trespassers. o This illustrates the traditional approach of the courts when it comes to granting remedies to licensee  HOWEVER, this contrasts with the approach taken in: Manchester Airport v Dutton [2000]: An order for possession was granted to a licensee against a trespasser Vehicle Control Services Ltd v HMRC [2013]

Moody v Steggles (1879) 12 Ch D 261 Easement recognised  An easement to hang a sign advertising a pub on neighboring land was recognized as an easement as this benefitted the pub that was located on the dominant tenement - THIS WAS NOT AN EXCLUSIVE RIGHT LIKE in Hill v Tupper Platt (P&S) Ltd v Crouch [2003] Easement recognized  The right to moor boats at a riverbank was capable of subsisting as an easement for the benefit of a hotel situated on the dominant tenement - THIS WAS NOT AN EXCLUSIVE RIGHT LIKE in Hill v Tupper

TRICKY TOPIC: Easements for purely recreational purposes - Re Ellenborough Park  right to use a park amounts to more than mere recreation, and should be distinguished from the right to wander - Regency Villas Title Ltd v Diamond Resorts (Europe) (2017)  Leading case on the validity of easements Facts: Issue(s): Judgement:  Purely recreational facilities may be subject to an easement  Whatever may have been the attitude in the past to “mere recreation or amusement”, recreational and sporting activity of the type exemplified by the facilities at Broome Park is so clearly a beneficial part of modern life that the common law should support structures which promote and encourage it, rather than treat it as devoid of practical utility or benefit”  So long as the dominant and servient tenements existed, an easement would continue to exist in respect of a new or improved facility.  The law will create new easements to keep track with social change 4. The right must be capable of forming the subject matter of a grant: An easement must be capable of being expressed in a deed. To satisfy this test, the following four requirements must be met.

(i) There must be a capable grantee and grantor The original grantee and grantor must have been of (1) full age, (2) sound mind and have (3) possessed an estate in the dominant and servient land respectively. (ii) The right must be sufficiently definite The easement must be capable of being enforced, therefore cannot be too vague; courts must be able to determine whether the easement has been interfered with or not. The courts have held the following to be insufficiently certain, and therefore cannot form easements: - The right to wander freely over land – Re Ellenborough Park [1956] - The right to protection from the weather – Phipps v Pears [1965] - The right to a good view – Aldred’s case [1610] - The right to privacy – Browne v Flower [1911] - The right to a good TV signal – Hunter v Canary Wharf [1997] (iii) The right must be analogous to existing easements Courts will permit the creation of new easements in order to allow the law to keep pace with social change (Re Ellenborough Park) but they are reluctant to do so. Therefore, to be recognised as an easement, the right claimed must be similar to one already recognised as an easement, thus allowing the law to grow, albeit incrementally. - Russel LJ: Re Ellenborough Park represented a ‘defrosting operation’ to the previous unwillingness of the courts to create new easements - HOWEVER, the courts remain extremely reticent to create new easements that would place impediments on plots of land that will impact its value and marketability – negative easements are one such category Negative Easements: Legal obligations to not use property in certain ways that would be otherwise legal - Phipps v. Pears [1965]  Lord Denning: ‘the law has been very chary of creating any new negative easements’ because (1) it ‘would hamper … legitimate development’ of land; and (2) the same effect could be obtained by one landowner obtaining a covenant from his neighbour not to pull down his house. Coventry v Lawrence [2014]  First recognition by the Supreme Court of an easement to create nuisance – right to create a nuisance can be acquired by prescription (long use) (iv) The right must place no positive burden on the servient owner - A right that requires the landowner to incur expense will not be recognised as an easement. - To this principle, there is however an old and anomalous exception, namely a longestablished right of one landowner, claimable only in limited circumstances, to require her neighbour to maintain fences against cattle trespass (see Jones v. Price [1965] 2 QB 618; Crow v. Wood [1971] 1 QB 77, 84-85 (Lord Denning, MR).

(v) The right must not totally exclude the servient owner (the ‘ouster principle’) If the right claimed amounts to possession rather than mere use, it will be considered too excessive to be easement and would be more rightly considered as a claim to adverse possession. - Copeland v Greenhalf [1952]: laid out the above position BUT - Questioned by Moncrieff v Jamieson (2007): SEE BELOW  Law Commission has called for the abolition of the ouster principle in 2011 -

London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]  Excessive use amounting to ousting depends upon the degree or extent to which the servient owner is excluded ~ Judge Paul Baker QC: ‘[t]he matter must be one of degree. A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another.’

TRICKY TOPIC Possession and the ‘car parking cases’: An easement of parking can be a very valuable interest. There have been several cases that have looked at this. - London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]  There could be an easement to park, given that the servient land is large enough o A parking easement will exist if the servient owner continues to have ‘reasonable use’ of their land, and the right claimed must not amount to an ‘invasion of the servient land’. - Martin George and Antonia Layard note in Thompson's Modern Land Law (7th edn) (OUP, 2019) recent cases have shown a willingness to apply the ‘reasonable use’ test from Batchelor v. Marlow in a broad and expansive way; in recognition, perhaps, of the fact that car parking is unique in the prevalence of real-world usage when compared with other forms of easement, and the law must find an approach that reflects that - Kettel v. Bloomfold [2012]  respondent landlord was injuncted from building on the parking spaces on his land, which the appellants had a right to use – represents the significance that courts place on the ability to park vehicles, likely because it forms such a central element of modern life - R Square Properties Ltd v. Nissan Motors (GB) Ltd (2014)  the judge held that the respondent’s exclusive right to use eighty parking spaces on the servient land did not deprive the appellant of reasonable use, because he could still use the land for other purposes. - Moncrieff v. Jamieson (2007)  Did a person with a right of way also have a right to park  right to park held as ancillary to the right of way, as without the right to park, in this case, the grantee would have to traverse 150ft in all weather to get to his car, which would contravene the notion of easements, whose purpose is to enhance the grantee’s enjoyment of the dominant land ~ strange because protection from weather is a right that is considered too vague to be considered an easement  underpins how important parking is

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o Both Lord Scott and Lord Neuberger rejected the idea that the test to determine the excessiveness of use was one of fact and degree and both disapproved Batchelor v. Marlow  Lord Scott’s new test: does the servient owner retain ‘possession of, and subject to the reasonable exercise of the right in question, control of the servient land’?  blurs distinction between possession and use Law Commission  Rights to park present a fundamental challenge to the ouster principle  the ouster principle should be abolished o BUT Lord Scott’s comments in Moncrieff v Jamieson deeply unhelpful  BUT exclusive possession should not preclude an easement

Key cases

London and Blenheim Estates Ltd v Ladbroke Retails Parks Ltd [1992]

The owner of an extensive shopping mall claimed, among other things, that the right of his customers to park on a nearby car park was an easement. His Honour Judge Baker, QC was willing to accept such an argument in principle: ‘The essential question is one of degree. If the right granted in relation to the area over which it is to be exerciseable is such that it would leave the servient owner without any reasonable use of his land whether for parking or anything else, it could not be an easement, though it might be some larger or differing grant.’

Hair v. Gillman

Easement to park car granted

The court held that a right to park one car on any part of a forecourt which could accommodate four cars could be an easement.

(2000 80 P&CR 108

Batchelor v Marlowe[2001] Court of Appeal

Test: would the easement if granted leave the servient owner without any reasonable use of his land?

The respondents, who carried on a garage business, claimed to have acquired an easement to park up to 6 cars between 8.30am and 6.30pm on appellant’s land. The appellant argued that such a right could not rank as

Followed London and Blenheim test

Easement to park car not granted: use too excessive

an easement, but the respondent said that it would do so, because the appellant could still use the land for 120 hours per week. The CA accepted the appellant’s argument, and applied the London and Blenheim test. Tuckey L.J. said: ‘If one asks the simple question: “Would the appellant have any reasonable use of the land for parking?” the answer, I thi...