Easements

Question 1

Re Ellenborough Park [1956] Ch 131 CA

Answer 1

Re Ellenborough Park [1956] Ch 131

• Facts
  
  • Two plots adjoining Ellenborough Park in Weston-super-Mare were sold to different purchasers
  • The conveyances granted to the purchasers the ‘full enjoyment’ of Ellenborough Park
  • The conveyances also contained covenants that the purchasers would pay fair proportions of the cost of keeping the park in good condition
• Issue: Were the ‘enjoyment rights’ capable of being recognised as easements?
• Decision: Yes
• Reasoning: Also enjoyment rights alone cannot be recognised as easements, the park acted as a garden for the conveyed plots of land, providing a sufficient connection with the plots to find easements
• Authority:
  
  • Four requirements for a right to qualify as an easement:
    
    • Dominant/Servient land
    • Right must accommodate the dominant land
      
      • Enhancement of the value of that land may be evidence of accommodation but its not in itself conclusive
    • Diversity of ownership and/or occupation of the dominant and servient lands
      
      • Cannot enjoy an easement against your own land.
    • Right must be capable of forming the subject-matter of grant
      
      • Must not ouster the servient
      • An easement does not require anything more than mere passivity on the part of the servient owner. The easement cannot place any legal obligation on the servient to incur expense or any other positive obligation.

Question 2

What are the 4 general requirements for an easement?

Answer 2

• Dominant/Servient land
• Right must accommodate the dominant land
  
  • Enhancement of the value of that land may be evidence of accommodation but its not in itself conclusive
• Diversity of ownership and/or occupation of the dominant and servient lands
  
  • Cannot enjoy an easement against your own land
• Right must be capable of forming the subject-matter of grant
  
  • Must not ouster the servient
  • An easement does not require anything more than mere passivity on the part of the servient owner. The easement cannot place any legal obligation on the servient to incur expense or any other positive obligation.

Question 3

Crow v Wood [1971] 1 QB 77 CA

Answer 3

Crow v Wood [1971] 1 QB 77 CA

• Facts
  
  • A landowner let out his farmland to several different farmers
  • The tenancy agreements provided for the keeping of sheep, but required that boundary fences were maintained
  • One of the farms was sold
• Issue: Could an obligation to keep fences in good repair be turned into an easement upon the sale of the farm by virtue of s 62 of the Law of Property Act 1925?
  
  • Question was whether the right to have one’s neighbour maintain their fence to keep in livestock was a valid easement.
• Decision: Yes
  
  • Reasoning: Although it is a general rule that an easement cannot require a servient landowner to spend money in order to comply, maintaining boundary fences constituted an exception, recognised in the general nature of rights which may constitute easements.
  • Lord Denning MR: It has long been the courts’ practice to recognise a right to require the owner of adjoining land to keep the boundary fence in repair, even though it requires the spending of money by one party
• Analysis.
  
  • N.b. Law Com 327 proposes that such obligation in the future take effect as land obligations
    
    • This seems to be an anomalous decision. The status quo is that the servient owner is under no obligation to spend money maintaining/repairing so as to enable the right to be enjoyed.
  • Also remember that expenditure does not include costing the servient owner by him losing money. The question is rather whether the servient owner has to spend money for the right to exercised.

Question 4

Egerton v Harding [1975] QB 62 CA

Answer 4

Egerton v Harding [1975] QB 62

• Once an immemorial usage to fence against a common is established, a lawful origin of the usage is to be presumed. P’s cottage and D’s farm adjoined common land. D’s cattle strayed from the common into P’s garden through gaps in a blackthorn hedge and caused damage, P sued D for cattle trespass.
• Held, there was evidence of immemorial usage that there was a duty on P to fence against the common. That immemorial usage must be presumed to have arisen from a lawful origin and P was not entitled to damages.
• N.b. Although D established that there was duty on D to maintain a fence this was not a duty in the nature of an easement (Crow v Wood):
  
  • it has to be shown that the fence was maintained “as a matter of obligation towards the adjoining owner

Question 5

Liverpool CC v Irwin [1977] AC 239 HL

Answer 5

Liverpool CC v Irwin [1977] AC 239 HL

• Although the servient owner is prima facie under no obligation to maintain/repair so as to expedite the easement, there may be case where the parties agree either expressly or impliedly, that the servient owner will bear the cost of repair and maintenance:
• In this case HL found implied-in-law obligation to maintain common parts of tower-blocks
• Although this was fulfilled since Ds spent more on repairs than it received in rent

Question 6

Regency Villas Ltd v Diamond Resorts Ltd [2018] UKSC 57

Answer 6

The grant of a right to owners of timeshare units to use sporting and recreational facilities situated on the servient tenement land
could amount to an easement. It satisfied the long-established requirement that the easement should accommodate the dominant
tenement because the right to use adjacent recreational facilities was of benefit to the timeshare units.

READ FULL CASE

Question 7

Haddock v Churston Golf Club Ltd [2019] 4 WLR 60 CA

Answer 7

Haddock v Churston Golf Club Ltd [2019] 4 WLR 60 CA

• Facts:
  
  • A conveyance in 1972 contained a ‘covenant’ by the buyer in favour of the owners of adjoining land as follows:

“The Purchaser hereby covenants with the Trustees that the Purchaser and all those deriving title under it will maintain and forever hereafter keep in good repair at its own expense substantial and sufficient stock proof boundary fences walls or hedges along all such parts of the land hereby conveyed as are marked T inwards on the plan annexed hereto”.

• The current tenant of the adjoining land looked to enforce this obligation against the current tenant of the land conveyed in 1972 (i.e. not the original covenantor) on the basis that the obligation was a fencing easement (and so ran with the land). To the surprise of most people, this argument was successful in the High Court
• Issues:
  
  • Could the obligation in the 1972 conveyance be construed as a fencing easement (and therefore binding on successors in title to the servient land)?
  • If so, was it possible to create such an easement by express grant?
• Held:
  
  • To construe the obligation in the 1972 conveyance as an easement (rather than as a covenant) would be at odds with the language and the composition of the conveyance (after all, the relevant clause expressly used the word “covenants”). The conveyance was drafted by a lawyer and the form and terminology adopted demonstrated that the draftsman understood the basic rules governing the creation of easements and the imposition of covenants. There was no justification for construing Clause 2 other than as a positive covenant to fence, which was incapable of binding successors in title without a chain of indemnity covenants.
  • Given this conclusion, it was not necessary for the court to decide whether a fencing easement could be created by express grant.

Question 8

London & Blenheim Estates v Ladbroke Retail Parks [1993] 4 All ER 157

Answer 8

London & Blenheim Estates v Ladbroke Retail Parks [1993] 4 All ER 157 CA

• Summary:
  
  • An attempt to add future acquired land to the dominant tenement was held to be ineffective because the dominant land was not clearly identified.
  • Both the dominant and servient land must be identifiable at the time the easement is created
  • The creation of easements for the benefit of land not yet identified is not possible
  • N.b. However Reserving a future easement, binding upon successors in title to the servient land, is possible in respect of dominant land that is identifiable at the date of the lease.
• Facts
  
  • A transferred part of his land to P together with certain rights and easements over the land retained by the transferor.
  • As part of the transfer, if P purchased other land and gave notice to the transferor such additional land would also benefit from the same rights and easements over the retained land.
  • P subsequently purchased additional land adjoining the retained land, which was land capable of being benefited by the rights and easements.
  • Shortly thereafter the retained land was transferred to W who sold it to D. Within the required five years, but after the transfer to W, P gave notice to W under cl. 11 that the additional land was to be included in the transferred land. D disputed this and P issued proceedings for a declaration in his favour.
  • • Issues:

1. Did P by virtue of the agreement with A have an interest in land (an easement) over D’s land.
2. Was the right to create an easement capable of being an interest in land.
3. When would such an interest arise
   
   • Held
4. P did not have an easement from the additional land over D’s land. This was because the dominant tenement ( additional land) was unspecified. The creation of easements for the benefit of land not yet identified is not possible
5. It was capable of being an interest, but only if the dominant tenement was identified
6. An interest in land binding on successors in title to the servient tenement did not arise when P acquired the additional land, irrespective of notice, but only when the required notice had been given, since that was one of the express conditions of the transfer

Question 9

Hill v Tupper (1863) 2 H & C 121

Answer 9

Hill v Tupper (1863) 2 H & C 121

• Facts:
  
  • The plaintiff, Hill, was granted a lease of land on the side of the Basingstoke Canal by the canal company. The lease also gave the plaintiff the sole and exclusive right to put pleasure boats for hire on that stretch of the canal. The defendant, Tupper, was the landlord of an inn which adjoined the canal bank. The defendant put his own boats for hire on the canal, disturbing the plaintiff’s business and causing him loss of profits.
• Issues:
  
  • Tupper admitted using pleasure boats on the canal and that these were used by his customers at the inn. However, he argued that the plaintiff was not entitled to the sole and exclusive use of the canal. The plaintiff claimed that his right amounted to a profit à prendre. A profit is the right to take or use something from another’s land. The question here was whether such a right was recognized by law.
• Held:
  
  • The court held that this was only a personal right and not a profit. The 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 not be created at will. The right was not analogous to any previously recognised by law, such as the right to take fish or turf. If the plaintiff had needed to get from one side of the canal bank to the other this could have been an easement as the right would clearly have benefitted the land. Here, the right was not connected with the land. Consequently, this was not a valid profit
  • An easement must accommodate dominant land. It may not constitute a purely anticompetitive right for the benefit of a business
• Principle:
  
  • For a right to be capable of being an easement it must accommodate a dominate tenement rather than confer a mere person advantage on the current owner,
• Analysis ( Lord Briggs in Regency Villas):
  
  • 55. The case had been argued on the basis that the exclusive right to operate a pleasure-boat business on the canal was in the nature of a profit rather than an easement, by way of analogy with a several fishery or a right of turbary. Unlike easements, there is no invariable requirement that a profit accommodate neighbouring land: see Gale on Easements, 20th ed (2017), at para 1-149. It appears from the full report of the submissions of counsel, and the judicial interventions therein, that it was not argued that the right granted accommodated the plaintiff’s land on the canal-side. The members of the court appear to have assumed that it did not, although, following In re Ellenborough Park, at least one commentator has suggested that the same facts might now give rise to an easement on that basis: see R N Gooderson, writing in the Cambridge Law Journal [1956] CLJ 24, 25.
  • 56. In my view Hill v Tupper was decided on the basis that the grant of a monopoly to carry on a pleasure boat business on the whole length of a canal (which ran from Chertsey to Basingstoke) was by its very nature incapable of constituting a proprietary right, merely by being annexed to the lease of a tiny section of the canal bank, regardless whether it did or did not accommodate the supposed dominant tenement. It was held to have been a perfectly valid grant of a personal right, as between the canal owner and the plaintiff lessee. But to sue for an infringement of it by another pleasure boat operator would have required the plaintiff to sue in his landlord’s name as the owner of the canal.
  • 57. Hill v Tupper is not therefore authority for the proposition that the grant of rights which accommodate land cannot be an easement unless their enjoyment is capable of being described (in proportionate terms) as subordinate or ancillary to the enjoyment of the dominant tenement. Providing that the rights are for the benefit or utility of the dominant tenement as such, it matters not that their enjoyment may be a primary reason why persons are attracted to acquire rights (such as timeshare units) in the dominant tenement.

Question 10

Moody v Steggles (1879) 12 Ch D 261

Answer 10

Moody v Steggles (1879) 12 Ch D 261

• Facts: An easement was granted in favour of a public house owner to affix a sign to adjoining property
• Issue: Was this a valid easement?
• Decision: Yes
• Reasoning:
  
  • The easement did accommodate dominant land, despite also benefitting the business situated on the dominant land: it would continue to benefit successors in title to the dominant land.
  • If an easement benefits land then the fact that the land is used as a business cannot defeat the claim that it exists as an easement.
• Principle:
  
  • A right which confers a commercial benefit may not be precluded from being an easement where the commercial activity and the land upon which it is carried out have become interlinked, so that any benefit to the business also benefits the land.
    
    • The land was a pubic house -> necessarily entailed the business being apublic house. The land was by nature commercial, therefore a commercial right could be said to accomodate the land.

Question 11

Compare Hill v Tupper and Moody v Steggles

Answer 11

A right that conveys a commercial advantage can accommodate the dominant tenement, but only if that right/advantage can be seen as connected to the normal use and enjoyment of the land.

Question 12

Regency Villas Ltd v Diamond Resorts Ltd [2018] UKSC 57 on the issue of accomodation and recreations

Answer 12

• Overall, the majority accepts that the grant of an easement in this case was novel, given the greater running costs and operational responsibilities, and that there are factors which tell against broad recognition of rights over such facilities as easements [75]-[80]. Ultimately, however, the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well-settled conditions for easements [81]. Where the actual or intended use of the dominant tenement is itself recreational, as is the norm for holiday timeshare developments, the “accommodation” condition will generally be satisfied by a recreational easement [81].

Question 13

What is a profit à prendre (2)

Answer 13

A profit à prendre (profit) is a right to take something from another’s land (the servient land) that is both:

• Capable of ownership; and
• A product of nature.

Typical profits include:

• The removal of part of the land itself, for example, soil or minerals.
• Taking something growing on the land, for example, timber, turf or grass. This includes “taking” by animals, for example, a right to graze sheep or pasture cattle.
• The killing of wildlife living on the land, for example, rights of hunting and fishing.

A profit must be associated (accomodate) with the dominant land.

Question 14

Polo Woods Foundation v Shelton-Agar [2010] 1 All ER 539

Answer 14

Summary

Polo Woods Foundation v MA Shelton-Agar and another [2009] EWHC 1361 (Ch), confirmed that, in determining the existence of a profit, there is no need to show that the right granted affords an appreciable, valuable benefit to the dominant land.

• Facts:
  
  • Polo Woods owned a substantial farm which had, at all material times, been used for rearing polo ponies. Polo Woods sought to register a profit to graze a limited number of horses on a triangle of land (0.8 acres), owned by Mr and Mrs S, which was accessed from the farm.
  • They were initially denied because t was found that the triangle provided insufficient yearly grazing for even one pony and that Polo Woods did not depend on the grazing it provided to support its ponies. Although the profit was for some “benefit” of the farm, in that it was connected to it, the actual benefit it provided was negligible or non existent. The farm itself was sufficient for Polo Woods’ grazing purposes.
• Held:
  
  • There is no test of real benefit. it could not be argued that a profit of grazing did not exist simply because the farm could manage perfectly well without it. Case remitted back to land registry.

Question 15

Bryant v Lefever (1879) 4 CPD 172 CA

Answer 15

Bryant v Lefever (1879) 4 CPD 172

• The plaintiff and the defendant occupied adjoining premises. The plaintiff complained that, in rebuilding his house, the defendant had carried it up beyond its former height, checking the access of the draught of air to the plaintiff’s chimneys. The Court of Appeal held that the right upon which the plaintiff relied did not exist at law and that no man could dictate to his neighbour how he should build his house with respect to the general current of air common to all mankind.
  
  • No easement over a right to receiver air
• A right to receive air can however be acquired by prescription (at common law or pursuant to section 2 of the Prescription Act 1832) where the air is received onto the dominant tenement through a defined channel on the adjoining land, or is received through a defined aperture in the dominant tenement.

Question 16

Wright v Macadam [1949] 2 KB 744 CA on the issue of diversity of owernsip/being capable of grant.

Answer 16

• Wright v Macadam* [1949] 2 KB 744 CA
• If the occupier of the land is a mere licensee, no easement can be created between him and the estate owner (Wright v Macadam) because the licensee owns no estate in land.

Question 17

Copeland v Greenhalf [1952] Ch 488

Answer 17

Copeland v Greenhalf [1952] Ch 488

• Facts: A right to park an unlimited number of cars on a 35×150 foot area of land for an indefinite period of time amounted to a claim for exclusive possession, incapable of being recognised as an easement.
• The ouster principle: easement must not leave the servient owner without any reasonable use of his land

Question 18

Miller v Emcer Products [1956] Ch 304 CA

Answer 18

Miller v Emcer Products [1956] Ch 304 CA

• Valid easement arose to use a neighbour’s toilet
• Facts: A tenant claimed the right to use a lavatory on another floor of the building in which he lived. The tenants of that floor objected to his use of it. One question was whether the right to use the toilet would be capable of being an easement. CA held that it was.
• Judgement:
  
  • Romer LJ: “There is no doubt what were intended to be the dominant and servient tenements respectively, and the right was appurtenant to the former and calculated to enhance its beneficial use and enjoyment.” There is no problem of vagueness. “It is true that during the times when the dominant owner exercised the right, the owner of the servient tenement would be excluded, but this in greater or less degree is a common feature of many easements (for example, rights of way)”.
• Analysis:
  
  • The ouster principle principle/reasonable use test appears to operate according to a question of degree. The question is at what point does the dominant’s owner’s use of land become so extensive that it precludes the servient owner from retaining any reasonable use?

Question 19

Phipps v Pears [1965] 1 QB 76

Answer 19

Phipps v Pears [1965] 1 QB 76

• Facts:
  
  • A claim of an easement to have a house protected from the weather by another house was rejected as an easement. To allow otherwise would have precluded the owner of the other house from demolishing it.
    
    • No such easement as to be protected by weather existed
    • No such right was capable of being granted at law
• Principle:
  
  • Negative easements restricting what a servient owner can do over his own land, can no longer be created.

Question 20

Rance v Elvin (1985) 50 P & CR 9 CA

Answer 20

Rance v Elvin (1985) 50 P & CR 9 CA

• Facts:
  
  • D granted P a right for an uninterrupted flow of water through water pipes situated under the retained land, with P contributing to the cost of the supply, but D was the party responsible for paying the meter. P claimed an easement of uninterrupted supply of water paid for by D, but with P owing D money in proportion to his usage. CA held that although P had a right to all water entering D’s pipes, and D could not interfere with this, on a true construction there was no duty for D to ever have water in its pipes.
• Analysis:
  
  • Browne-Wilkinson LJ: An easement compelling D to buy water and put it in his pipes could not be an easement since it is a negative easement and not one of the exceptions under Phipps (there is a distinction between not obstructing access to water- passive, exception under Phipps- and supplying water- active, not excepted under Phipps). Here, there is a right to passage, which is an easement, and NOT a right to supply (which is not).

Question 21

Batchelor v Marlow [2003] 4 All ER 78 CA

Answer 21

Batchelor v Marlow [2003] 4 All ER 78

• Facts
  
  • Batchelor owned a car parking area, which was the servient land to an easement granting Marlow (the defendant) the right to park up to 6 cars on the land between 9:30 and 18:00 on weekdays
• Issue
  
  • Did this amount to a claim for exclusive possession as to be incapable of being an easement?
• Decision: Yes
• Reasoning:
  
  • It is irrelevant what other land the servient owner owns; exclusive possession is to be judged on the area of land subject to the easement only
  • Given that the claimant’s land could not be used during important periods, Batchelor was deprived of any reasonable use of the land
  • The easement was not enforceable, the ownership was illusory

Question 22

Moncrieff v Jamieson [2007] 1 WLR 2620 HL

Answer 22

Moncrieff v Jamieson [2007] 1 WLR 2620, [54]-[61], [102], [134]-[144]

• Facts: An easement (right of way) was granted over servient land to access other (dominant land), which was relatively difficult to access. The easement permitted vehicles to use the right of way to load and unload goods and persons
• Issue: Given the difficulty in accessing the dominant land, did the easement permit parking vehicles on the right of way too? Did the right of way granted to the respondent to stop and drive on the appellant’s land also translated into a right to park there.
• Held: The appeal was dismissed.
• Decision: Yes
• Reasoning
  
  • Where ancillary rights to easements are necessary for the reasonable enjoyment of land, and may have been in contemplation when the easement was granted (1973), they may be held to exist
  • The court held that the right to park could be ancillary to the easement otherwise provided where it was necessary for the enjoyment of the land which benefits from the easement, especially where this could have been in the contemplation of the parties at the time of the making of the easement (for which a deciding court must consider the full context and details of the case).
  • This case criticised, but did not overrule, Batchelor v Marlow [2001]
    
    • Lord Scott: the principle as stated in Batchelor v Marlow “needs some qualification.”
• Analysis:
  
  • Lord Scott appeared to depart form the reasonable use test and instead asked whether the exercise of the right would leave the servient owner in ‘possession and control’ of the servient land.
  • A right to park is capable of being an easement.

Question 23

Comparing Batchelor and Moncrieff ? (3)

Give the different approaches it is apossible to take (2)

What will happen in the future

Answer 23

• Batchelor was not overruled in Moncrieff and Lord Scott’s comments are considered obiter since application of either test would have produced the same positive results.
  
  • N.b. Law Com 327 proposed the abolition of the ouster principle / reasonable use test
• Moncrieff was a scottish case. However, Lord Scott who gave the principle judgment thought that there was no discernible difference on the relevant points between Scots and English law..
• In the Batchelor case the Court of Appeal held that if the right claimed is so extensive as to render ownership of the servient land illusory, then the right is not capable of being an easement. In Moncrieff the House of Lords criticised Batchelor and observed obiter that the correct test was whether the servient owner retained control and possession of the land However, Batchelor remains binding, although the test in Moncrieff has been applied elsewhere.

Different Approaches:

1. Apply the test in Moncrieff​
   
   • in Regency Villas Court considered ouster argument on the basis of possession and control.
   • C.F. Virdi v Chana - The adjudicator had been wrong to accept that the test of reasonable use in Batchelor had been modified to one of possession and control by Moncrieff
2. (More popular) - Distinguish Batchelor on the facts e.g:
   
   • ​​right to park had not completely deprived servient owner of reasonable use. R Square Properties Ltd v Nissan Motors (GB) Ltd
   • ownerhsip not rendered illusory.
     
     • Virdi v Chana [2008] EWHC 2901 (Ch) distinguished Batchelor v Marlow on the basis that the parking space was adjacent to Mrs. Virdi’s property and she had the ability to alter the surface for aesthetic reasons.

There must come a case in which it is not possible to distinguish Batchelor v Marlow and so the appellant courts will consider full arguments on the issue and formulate a different test. For my part, I am of the view that this is likely to be the test formulated by Lord Scott and supported by Lord Neuberger.

Question 24

Regency Villas Ltd v Diamond Resorts Ltd [2018] UKSC 57 on the issue of ouster

Answer 24

The ouster test consdier was that of possession and control

Issue: Whether the exercise of the dominant owner’s step-in rights oto manage and maintain the relevant recreational and sporting facilities in the event that, being under no obligation to the dominant owner to do so, the appellants as servient owners ceased to do so themselves. The argument went that the exercise of those step-in rights would deprive the appellants of possession or control of the Park, or substantial parts of it, thereby amounting to ouster.

Held: The Court of appeal had held that step-in rights could be exercised without the taking of posession and control. ( the golf ocurse could be kept in a playable if not chmapionship condition through the exercise of minial step-in rights.

Lord Briggs UKSC held that it is wrong in principle to test the issue whether a grant of rights amounts to an ouster of the servient owner by reference to what the dominant owner may do by way of step-in rights if the servient owner ceases to carry out the necessary management and maintenance of the servient tenement. because:

1. The first is that the ouster question should be addressed by reference to what may be supposed to have been the ordinary expectations of the parties. Step-in rights were not exercised in the ordinary course of affaris
2. Step-in rights are by defintion rights to reasonable access for maintenance of the servient tenement sufficient, but no more than sufficient to enable the rights granted to be used. Therefore if the intitial right (the right to use recreational and sporting facilities) could be used without taking control then a fortiori the step-in rights can be used without taking control.

Question 25

Polo Woods Foundation v Shelton-Agar [2010] 1 All ER 539 on the issue of the correct tes for ouster

Answer 25

• Polo Woods Foundation v Shelton-Agar* [2010] 1 All ER 539, [121]
• Although Moncrieff v Jamieson casts considerable doubt on the correctness of the decision in Batchelor v Marlow , Mr Batstone is right, I think, to say that the latter case is binding on me as a matter of law particularly in a case of prescription rather than express grant

Question 26

Give an examples of policy reasoning in the law of easements? (mention 3 cases)

Answer 26

There may be compelling public policy factors in deciding whether a right may exist as an easement :

1. The four criteria in Ellenborough only tell us the intrinsic characteristics of an easement, not whether the particular right will qualify as an easement -
2. Perhaps Hill v Tupper was not an easement because it was against the public interest for a particular individual to have exclusive rights to use a waterway;
   
   • AlsoWright v Macadam (an easement of storage) granted to protect a vulnerable tenant against a powerful landlord? (seemingly appears to fail ouster on both renditions of the test??)

Question 27

What is the contra proferentem rule?

Answer 27

Contra proferentem rule

The contra proferentem rule states, broadly, that where there is doubt about the meaning of the contract, the words will be construed against the person who put them forward.

Question 28

St Edmundsbury Diocesan Board of Finance v Clark [1975] 1 All ER 772 CA

Answer 28

St Edmundsbury Diocesan Board of Finance v Clark [1975] 1 All ER 772 CA

• Facts:
  
  • property was conveyed to P by V, part of which was conveyed “subject to a right of way over the land coloured red
  • Later, V claimed a right of way with motor-vehicles; P claimed that the right of way was solely on foot,
  • At first instance the judge held, construing the conveyance contra proferentem in favour of the purchaser, that no vehicular right of way was reserved.
• Held: On appeal by V, held, dismissing the appeal, that the conveyance should have been construed in favour of the vendor. However, it was clear on the facts, without the application of the maxim, that the right of way was for pedestrian use only.
  
  • The words in an easement are to be given their natural meaning. A right of way used to reach a church could not be used for vehicles given that it was too narrow and had never previously been used by anything other than pedestrians.
• When a reservation is ambiguous then contrary to the status quo, the contra proferentem rule will operate against the purchaser.

Question 29

Pwllbach Colliery v Woodman [1915] AC 634 HL

Answer 29

Pwllbach Colliery v Woodman [1915] AC 634 HL

Lord Parker identifies two circumstances where an easement can be granted by implication:

1. The easement is necessary for the enjoyment of a right that is expressly granted – neccesity
2. Easement is necessary to enable the dominant owner to use the land for the purpose for which it was sold or leased. – common intention ( both are based on necessity)

Question 30

Wong v Beaumont Property Trust Ltd [1965] 1 QB 173 CA

Answer 30

Wong v Beaumont Property Trust Ltd [1965] 1 QB 173 – common intention

• Facts
  
  • A lease was granted to a restaurant operator, requiring land to be used as a restaurant
  • Regulations required a ventilation duct to be installed
• Issue
  
  • Was an easement of common intention granted over the lessor’s land for a ventilation duct leading from the lessee’s land?
• Decision: Yes
• Reasoning
  
  • Both parties intended the land to be used as a restaurant
  • A ventilation duct was necessary for that particular and definite purpose

Question 31

Nickerson v Barraclough [1981] Ch 426 CA

Answer 31

Nickerson v Barraclough [1981] Ch 426 - necessity

• Facts: P’s land could only access the public highway via a bridge and through D’s land However P’s land was accessible by another route. D kept pulling down the bridge. P asked the court to imply an easement right of way. CA denied P’s claim on the facts, saying that a right of way could only be implied by necessity where the land would otherwise be inaccessible.
• Issue:
  
  • Does a finding that there is no intention to create an easement (here based on the express intention not to create an easement) prevent a successful claim to an easement of necessity? Or are easements of necessity based on public policy (or is public policy an aid to construction so as to make it easier to find that there is an easement of necessity)?
• Held:
  
  • The English Court of Appeal held that easements of necessity are based on intention. A clearly expressed intention not to grant an easement prevents an easement of necessity from arising.
• Judgement:

Brightman LJ: “The doctrine of way of necessity is not founded upon public policy at all but upon an implication from the circumstances”. “A way of necessity is never found to exist except in association with a grant of land”. He explicitly states that this mode of creating an easement is based on what is necessary to give effect to the parties’ intentions/expectations, and NOT what is necessary for the property to realise its usefulness.

Question 32

Donovan v Rana [2014] 1 P & CR 23 CA

Answer 32

Donovan v Rana [2014] 1 P & CR 23 – common intention

• Summary: Where parties intend there to be a dwelling house built on land, it may be considered that connections to essential services are necessary for that purpose, such that an implied easement of common was impliedly granted for the benefit of that land.
• Facts:
  
  • The Seller argued that the transfer of land did not provide for the right to lay utilities across the Seller’s retained land. R, by way of a defence to the Seller’s claim, claimed that due to the ‘self-evident’ common intention to build a house on the plot, there should be implied an easement of necessity to lay utility services across the right of way land:
    
    • • Held:
  • The Court of Appeal held that the transferee was granted an express right of way “for all purposes connected with the use and enjoyment of the property but not for any other purpose”. The Court said one such purpose would be the laying of connections to utilities. The wording of the express right of way was sufficient to allow the carrying of utility lines provided that they did not unreasonably obstruct the Seller’s enjoyment of their land:
    
    • the parties must be taken to have intended that the building of a dwelling-house on the building plot would have included the connection to mains utility services across the obvious route of the blue land

Question 33

Comparing common intention v. Necessity

Answer 33

• Necessity: an easement will be implied where it is essential for any use of the land of the land to be enjoyed
  
  • Seems to be confined to situations in which land becomes landlocked when a common owners sells (or leases) P part of his or her land. in this situation, it is clear that the burden of the right of way does not fall upon some third party, whose land happens to provide the required access.
  • An easement of necessity will only be implied where the land cannot otherwise be used at all. A high degree of necessity is thus required, which is likely only to be found where a right of way is necessary to provide access.
• Common Intention: An easement will be implied out of common intention where it is essential for the land to be enjoyed for the specific purpose which the parties have mutually intended
• However n.b. the both doctrines appear to be based on the party’s intentions and necessity (Nickerson)

Question 34

Wheeldon v Burrows (1879) 12 Ch D 31 CA

Answer 34

In Wheeldon v Burrows ((1879) L.R. 12 Ch. D. 31 CA (Eng)) T sold part of his land to W and retained part on which a workshop stood. T later sold the retained land with the workshop to B. The workshop received its light through windows that opened onto the land sold to W. W erected boards at the boundary between the two plots of land to stop the flow of light to B’s workshop and B knocked them down claiming he had an easement of light over W’s land.

Thesiger LJ (at 49) laid down two propositions, the first of which has come to be known as the rule in Wheeldon v Burrows. First, when a landowner sells off part of his land and retains part, the conveyance will impliedly grant all the continuous and apparent easements over the retained land necessary for the reasonable enjoyment of the land sold. Second, there will be no retained reservation of easements over the land sold for the benefit of the retained land (save in exceptional cases such as easements of necessity). Both propositions, he said, rested on the maxim of non-derogation from grant.

Question 35

Define the rule in Wheeldon v Burrows.

Answer 35

The rule in Wheeldon v Burrows (1879):

whenever part of land with no previous diversity of occupation is sold: all easements which are continuous and apparent, necessary for the reasonable enjoyment of sold land and in actual use will pass with that (now dominant land).

Question 36

What re the 3 requirement for quasi-easement to pass under the rule in Wheeldon

Answer 36

Only certain quasi-easements qualify to pass under the rule. They must be:

1. Have been used, and us used at the time of sale or lease
2. ‘continuous and apparent’ and/or
3. ‘be reasonably necessary for the enjoyment of the property

Question 37

Define continuous and apparent

Answer 37

Continuous: A continuous easement is one which is enjoyed passively and which is of a constant nature. The most obvious example is a right to light. A right of way used intermittently is therefore not a continuous easement.

Apparent: Where an easement is apparent it seems that the need for it to be continuous is relaxed. A quasi-easement is apparent if there is a permanent feature on the servient land that signals the existence of an easement (Ward v Kirkland [1967] Ch 194). This might include a roadway denoting a right of way, windows denoting rights of light, or a channel denoting the right to take water.

Question 38

What is the jurisprudential basis for the rule in Wheeldon v Burrows?

Answer 38

The rule in Wheeldon v Burrows is founded on the doctrine of non-derogation from grant (see Implied grant), which is itself based in part on the intention (or presumed intention) of the parties. If it can be shown that the parties did not intend a particular easement to be granted, it will not be created under the rule in Wheeldon v Burrows.

Question 39

Wheeler v JJ Saunders [1995] 2 All ER 697 CA

Answer 39

Facts: X owned two plots of land, plot A have a quasi right of way through plot B, though it had another equally good entrance that didn’t go through plot B. P, who bought pot A sued for an injunction against D, who bought plot B, for blocking up the right of access.

Held: CA held (2:1) that there would be no injunction since the right of way wasn’t necessary for the reasonable enjoyment of the land, as there was another right of access.

Analysis:

• Note that there was disagreemnt between Staughton and Gibson LJ on the application of the facts to the law with regards the meaning of ‘reasonably necessary‘

Question 40

Descirbe the difference in approach between Staughton LJ ( and Sir John May) and Peter Gibson LJ

Answer 40

Staughton LJ:

• Even to a novice in the law of easements, it seems clear that the class of easements implied in favour of a grantee is wider than easements of necessity. The question is how much wider? For my part I do not consider that the south entrance was necessary for the reasonable enjoyment of Kingdown Farm House
• Staughton LJ sees the requirements of ‘continuous and apparent’ and ‘reasonably necessary’ as two distinct requirements. Although the the ida of necessity was wider than than used in implication by necessity on the facts of the case it was wide enough so as to imply a grant of a second ROW

Peter Gibson LJ:

• It is tolerably clear from Thesiger L.J.’s introduction of the test of necessity by the words “or, in other words” that he was treating the first requirement ( continuous and apparent) as synonymous with the second (reasonably necessary). It is plain that the test of what is necessary for the reasonable enjoyment of land is not the same as the test for a way of necessity.
• The judge said that the requirement of necessity meant “simply that reasonable use of the property cannot be had without the easement,” I am not able to say that the judge erred when he found that the front entrance was necessary for the reasonable enjoyment of the property on the evidence before him.

Question 41

S.62 LPA 1925 effect

Answer 41

S.62 LPA 1925 automatically passes to a successor in title all existing rights, privileges easement etc, attached to the land without the need for express mention in the conveyance. Not only will it pass existing easement to a successor in title, its operation also appears to create new easement where none existed prior to the conveyance

Question 42

Give the 2 instance in which Wheeldon v Burrows still applies?

Answer 42

Wheeldon v Burrows is now largely redundant except where:

1. There is no conveyance as required by s.62 (e.g. Borman v Griffiths [1930] 1 Ch 493: section 62 could not operate in this case, as it involved an agreement for lease, which was not a “conveyance”)
2. There is a contrary intention in the conveyance which prohibits the operation of section 62 (see Excluding section 62 by contrary intention) but not Wheeldon v Burrows.

Question 43

How can s.62 be excluded by contary intention.

Answer 43

• The contrary intetion must be express and explicit. Only way to guarantee is by expressly excluding the operation of s.62
• In Wood v Waddington the court rejected the argument that contrary intention was indicated (whether singly or cummulatively) by:
  
  • The express grant of other rights of way in the transfer.​
  • The express maintenance obligations of all such ways, which were set out in the transfer.
  • Two clauses in the transfer which covered the same ground as section 62, but were confined to “continuous rights” (which rights of way are not).
• Also the grant of a similar, but limited right will not on its own amount to an intention to exclude section 62 in relation to a broader right (Gregg v Richards [1926] Ch 521).

While explicit reference to the section may not be strictly essential, it seems sensible to expressly exclude the operation of section 62. The safest course is to state in terms that section 62 is not to apply to the conveyance in question.”

Question 44

Wright v Macadam [1949] 2 KB 744 CA

Answer 44

Wright v Macadam [1949] 2 KB 744

• Summary: A tenants revocable license to store coal in a coal shed converted. Upon the granting of a new lease, into a legal easement to store.
• Facts
  
  • Mrs Wright, a statutory tenant with landlord Macadam, was given permission to use a nearby shed (on Macadam’s land) to store coal
  • A new tenancy was granted to Mrs Wright, which made no mentions of the coal storage
• Issue: Had the permission to use the shed for coal storage, by virtue of s 62 of the Law of Property Act 1925, turned the permission into a legally enforceable easement upon the execution of the new tenancy?
• Decision: Yes
• Reasoning
  
  • s 62 is not confined to rights which are already legally enforceable( i.e. the right was at the time of conveyance merely a quasi-easement)
  • The right need not have been permanent – can be enjoyed merely by permission
  • The right need only be capable of being granted at law – although just because a right may alter the value of the dominant does not automatically make it an easement
  • s 62 will not operate where the right was clearly temporary
• Opinion:
  
  • the full judgment in this case is worth reading to understand how s 62 operates in practice
  • The storage right did not amount to a claim for exclusive possession of the shed; Macadam still had access
• Principle:
  
  • A conveyance in respect of the dominant land may elevate in favour of the transferee any pre-existing licences into easements, providing the conveyancing document expressed no contrary intention.

Question 45

Goldberg v Edwards [1950] Ch 427 CA

Answer 45

Goldberg v Edwards [1950] Ch 427

• Facts
  
  • A landlord leased an annex to his house
  • She permitted the tenant to access the annex through his house, although other access via a covered passageway was also possible.
    
    • She also permitted the tenant to put up an advertising sign, bell, and a letterbox for the business
  • The tenant was replaced by the claimant, who also accessed the annex through the landlord’s house, against his wishes
  • The landlord stopped the claimant’s access through his house
• Issue:

1. Had the new tenancy agreement converted the old tenant’s personal right of access into an easement for the claimant?
2. Had the other rights to put up signs etc been converted in property rights
   
   • Decision:
3. Yes
4. No – these right were only personal to the individual and did not attach to the property.
   
   • Reasoning
     
     • Section 62 of the Law of Property act had converted the right, and did not have a requirement of necessity
     • The date of execution, applicable to actual use, was irrelevant considering that the lease had been backdated. The right must be being enjoyed at the time of the conveyance. This means the date of the completion of the conveyance, not the date of exchange of contracts nor the date of commencement of the lease

Question 46

Ward v Kirkland [1966] 1 All ER 609 CA

Answer 46

Ward v Kirkland [1966] 1 All ER 609

• Facts:
  
  • The Ward’s cottage adjoined Kirkland’s farm, which m, at one tie had been owned by a common owner. The cottage was built so close to the farm’s boundary that the only practical way for its walls to be maintained was to go onto the farm. The Wards and their predecessor in title had done so for some time before Kirkland objected. Did the Wards have an easement?
• Held:
  
  • Although such a right was not created by implication in the present case since it was not “continuous and apparent” within the principle of Wheeldon v Burrows. The fact that the advantage had in fact been enjoyed, it was transformed into an easement by the Law of Property Act 1925 s.62
• Analysis:
  
  • ​For right to be apparent there must be a permanent feature on the servient land that signals the existence of an easement.

Question 47

What difference does diversity of occupation make to the operation of s.62?

Answer 47

If there is diversity of occupation at the time of the grant, then section 62 can operate on all quasi-easements to create easements.

If there is no diversity of occupation, section 62 can operate to create easements, but only where the quasi-easements are “continuous and apparent” in the sense developed for the purposes of the rule in Wheeldon v Burrows (1879) 12 Ch D 31 (Wood v Waddington [2015] EWCA Civ 538).

Question 48

Briefly Summarise the doctriine of Prescription.

Answer 48

Prescription is way of acuiring an easement:

Acquiring rights by prescription (or long user) is complicated and confusing. Prescription derives from an underlying tenet of English law that exercising a right for a long period of time, without interference, should be capable of legitimisation. It is combined with an assumption, in some cases a fallacy, that the right originally derived in a grant.

Question 49

What is the meaning of continuous and apparent as formulated in Wheeldon v Burrows?

Answer 49

The second requirement has its origins in the French Civil Code.

‘Continuous’, in this context, does not mean that the right must be continuously exercised, but rather invokes the sense of permanence, so that the right might be exercised whenever necessary.

‘Apparent’ is the more significant part of the second requirement. Indeed, it has been suggested that ‘continuousness is little more than a distraction’ and could be jettisoned. For a right to be apparent, it should be discoverable from a reasonably careful physical inspection of the land. There must thus be some feature on the servient land—for example, a roadway or manhole cover—that signals the right to a purchaser.

Question 50

Wood v Waddington [2015] 2 P & CR 11 CA

Answer 50

Wood v Waddington [2015] 2 P & CR 11 (why do provisions in the French Civil Code appear in this case?)

• Facts
  
  • The claimants had purchased part of land previously owned, along with adjoining land, by one person.
  • The land was purchased with the benefit of all liberties, privileges and advantages “continuously” enjoyed by it.
  • The remaining land of the previous owner was sold to the defendants
• Issue: Could the claimants continue to use bridleways across the defendant’s land for the purpose of riding horses? On the basis that the rights rose by

1. An express grant ;
   
   1. Property is sold subject to and with the benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the Property
2. S.62 LPA 1925
3. Wheeldon v Burrows
   
   • Decision:
     
     • No by virtue of express grant since not “continuous” in teh conventional sense
     • Yes by virtue of s.62 since “continuous and apparent” as understood in Wheeldon v Burrows
     • Whether it passed the test of WvB was not considered but it was said obiter that it would have been an uphill struggle to argue that the rights were reasonably necessary for the reasonable enjoyment of land.
   • Reasoning
     
     • Section 62 of the Law of Property Act 1925 could operate to grant an easement where the right to use the right of way was previously enjoyed
     • There was no reason why s 62 could not operate where there was no diversity of occupation previously as long as the right was previously enjoyed with the claimant’s land (as opposed to just by the claimant personally)
     • Providing the quasi-easement is enjoyed with the land there is no additional requirement that such an easement must be necessary for the reasonable enjoyment of the land.
   • Analysis:
     
     • Key takeaway is that s.62 no longer requires diversity of occupation providing the right is continuous and apparent.
     • Continuous and apparent appears to mean apparent, and does not refer to the use of the right of way, but the right of way itself[48]

Question 51

Borman v Griffiths [1930] 1 Ch 493

Answer 51

Borman v Griffiths [1930] 1 Ch 493

• A agreed to grant B to have a lease
• A claimed that s.62 operated to imply into that agreement “ all rights…”
• Held:
  
  • An agreement for a lease exceeding a term of three tears is not an“assurance of property or of an interest therein,” within s. 205, sub-s. 1 (ii.), of the Law of Property Act, 1925, and therefore cannot be deemed to include the general words of s. 62 of that Act.

Question 52

Give the authorities for the proposition that the operations of section 62 and W v B can be exressly excluded.

Answer 52

Land Registry Practice Guide 62 (PG 62)

Wood v Waddington

Question 53

Requirements for a legal easement. (4)

Answer 53

1. Competent grantor
2. Deed( s.52 LPA) which is s.1 LPMPA compliant
3. Equivalent in duration to one of teh legal estates in land ( leasehold or freehold)
4. Registered (s.27(2)(d) LRA 2002) but only where expressly acquired.

Question 54

An easement is equitable when: (3)

Answer 54

• created merely in complaince with s.53(1)(a) LPA 1925
• created merely by an equitable estate owner
• Attempt to create a legal easement fails to meet formailites but the attmempt does amount to a valid contract ( s.2LPMPA) that is specifically enforceable.

Question 55

Enforcement of LEGAL, EXPRESS easement

Answer 55

Registered under s.27(2)(d) LRA and therefore binding against all third parties.

Question 56

Enforcement of LEGAL, IMPLIED easement

Answer 56

Amounts to an overriding interest under sch.3 para.3 providing the right was either:

• actually known to the purchaser;or
• would have been obvious upon reasonably careful inspection;or
• exercised within one year prior to the disposition (BOP being on the new dominant owner)

Question 57

Enforcement of equitable easement

Answer 57

• Where entered as a notice on thh charges register (s.32 LRA 2002) it will be binding.
• Where no entry, it will not bind a purchaser for valuable consideration (s.29 LRA 2002)

Question whether there is scope for an equitable easement not entered on teh register to bind as an overriding interest under sch.3 para.2 - Chaudhary v Yavuz suggets obiter teh possibility of an easement being to amount to actual occupation, however rejects it on the facts of that case.

Question 58

How can an easment be impliedly reserved>

Answer 58

Technically only by common intentinon or necessity - though very hard to prove.

Never by Wheeldon or s.62.

Question 59

Distinguish the different forms of necessity requires in implied easements.

Answer 59

Neccessity: absolute necessity

Common Intention: specific necessity

Wheeldon v Burrows: general necessity