Easements

Question 1

A. Characteristics

Re Ellenborough Park [1956]

Facts/Held

Answer 1

Plots of land were sold, the seller covenanting with each purchaser to enjoy in common with the other persons a pleasure ground, subject to the payment of a fair proportion of the costs and charges of keeping it in order. Trial judge held that the right granted was an easement, so that purchasers of plots and their successors also had the right to use the pleasure ground.

Held: it was a legal easement because

1) The pleasure ground was the collective garden of the neighbouring houses to the use of which it had been dedicated by the original vendors, the right to full enjoyment did not fail to qualify as a legal easement for want of the necessary connection between its enjoyment and the premises to which the enjoyment was expressed to belong
2) The rights were not a right of joint occupation with the freehold owners; it is not repugnant to proprietorship or possession to dedicate a piece of land to use as a pleasure ground and to allow other persons to come enjoy it as such.
3) The right was beneficial to the houses to which the right was annexed, and did not fail as being a right merely of recreation and amusement.
4) The right to use a private pleasure ground is an easement known to the law

Question 2

A. Characteristics

Re Ellenborough Park [1956]

Evershed MR

characteristics of an easement?

Answer 2

Question is whether the owners of the adjacent houses have any right to use the garden, that is now enforceable by them against the owners of the park; if so, then this right must be understood in law to be an easement.
The characteristics of easements (Cheshire’s Modern Real Property):
1) Dominant an servient tenements
2) Easement accommodates the dominant (there exists the requisite “connexion” between the enjoyment of the dominant tenement and the servient tenement)
3) Dominant and servient owners are different
4) Must be capable of forming the subject-matter of a grant:
a. Whether the rights are expressed in terms of too wide and vague character
b. Whether the rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession
c. Whether such rights constitute mere rights of recreation, possessing no quality of utility or benefit
First and third characteristics can be disregarded.

Question 3

A. Characteristics

Evershed MR

Second characteristic

1. re others who did not possess the right could benefit?
2. did the right accommodate the land? Is annexation sufficient?
3. was the right in the present case satisfied?
4. Why did Hill v Tupper fail?

Answer 3

1. submitted that the right of full enjoyment of the park wasn’t sufficiently connected with the enjoyment of the property conveyed, and therefore couldn’t exist in law as an easement, because it could in fact benefit others besides those who possess the right. However, that the property cannot in fact be enjoyed by anyone other than the grantees is not an essential characteristic of an easement
2. It’s clear that it enhanced the value of the property, but this is not decisive though not irrelevant: it must be shown that the right is connected with the normal enjoyment of the property. This is a question of fact, and depends on the:
   (i) Nature of the alleged dominant tenement: at the time of conveyance, it was intended for residential and not commercial use. \
   (ii) Nature of the right granted: appellant contended that the right was akin to the right of the purchaser of a house to use the Zoological Gardens free of charge, which would undoubtedly increase the value of the property but isn’t sufficiently connected to the use of the house. But the analogy cannot be supported; a closer analogy would be someone selling the freehold of part of his house and granting to the purchaser, his heirs and assigns, the right appurtenant to that part to use the garden in common with the vendor and his assigns.
3. The connexion in this case would be amply satisfied and such is the case at present. The result is not affected by the fact that some of the houses that enjoy the right are not immediately fronting on the park, as the test is whether the park should constitute in a real and intelligible sense the garden of the houses to which its enjoyment is annexed, and this is satisfied in this case.
4. Appellant referred to Hill v Tupper but in that case the easement failed because it was in reality the creation of a monopoly unconnected to the ordinary use of the land, but which was merely an independent business enterprise; the land was merely a “convenient incident” to the exercise of the right.

Question 4

A. Characteristics

Evershed MR

fourth characteristic

Answer 4

1) Is the right too wide and vague? No – it’s well defined and commonly understood.
2) Is the right inconsistent with the proprietorship or possession of the servient owners? No – it doesn’t exclude ownership or possession than a right of way. The owners of the garden can cut down timber and retain its proceeds, and the shrubs and flowers are also their property. There’s nothing repugnant to ownership or possession that the owner should decide to dedicate their land to use as a garden and to allow a limited number of persons to enjoy it.
Appellants cited Copeland v Greenhalf (right of the dominant owner to leave as many lorries as he likes on an undefined strip of servient land for as long as he likes, to entre by himself and his servants to do repair work, is not an easement but a claim to a joint user of the land – in that case the lorries were parked for repair and the dominant owner had a repair business, so the judge concluded that the claimant was really seeking a right to occupy for the purpose of his business) doesn’t apply here.
3) Is the right a mere right of recreation without utility or benefit? No – a garden does confer pleasure, but it is not a right having no quality of utility or benefit because it constitutes a beneficial attribute of residence in a house as ordinarily understood. It’s used for domestic purposes (ex. taking out small children in perambulators).

Question 5

A. Characteristics

Crow v Wood [1971]

Facts/held

Answer 5

A sheep moor with adjoining farms was in common ownership, with farms leased to farmers with the right to moor sheep and agreement from the farmers to keep their walls up. A few farms were sold to C with the right to moor sheep and agreement, who didn’t exercise the right to moor and who didn’t keep their fences in repair so that other people’s sheep often got into their farms. They then brought actions for damages for cattle trespass. D claimed that C was under a duty by implied grant a common law and s62 LPA 1925 to keep up their fences and walls.
Held:
1) The right to have one’s neighbor keep up fences is a right that lay in grant and is of such a nature that it can pass under s62 LPA 1925 (Lord Denning: the right is in the nature of an easement; Davies LJ: the duty arose from proof that the land is accustomed to be fenced)
2) Thus the right passed on the conveyance to the purchasers and so to D; since C was in breach of their duty to fence they couldn’t complain of cattle trespass.

Question 6

A. Characteristics

Crow v Wood [1971]

Lord Denning

1. re custom of fencing
2. Wright v Macadam and Phipps v Pears
3. is the right to have a fence capable of being granted by law?
4. did it pass in this case?

Answer 6

1. there was an established custom of farming, but this isn’t sufficient to put an obligation on C to fence her land; the right to have fences kept up doesn’t arise by custom but by prescription. But the custom is important because s62 LPA 1925 provides that a conveyance of land conveys by virtue of this Act “all buildings, erections, fixtures … easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land”.
2. From Wright v Macadam and Phipps v Pears we know that when one piece of land in joint ownership is severed and sold off, then by virtue of the section all rights and advantages enjoyed with that piece of land pass to the purchaser, provided they are rights capable of being granted by law to run with the land and to be binding on successors (ex. right to use a coal-shed is, but a contractual right to have a road kept in repair is not as it’s a positive covenants that doesn’t run with the land).
3. Thus, question is whether a right to have a fence kept in repair is capable of being granted by law. IJO yes, because it is in the nature of an easement – it’s not an “easement strictly so called” in that the servient owner must spend money; it’s a “spurious kind of easement”, but it has been treated in practice by the courts as an easement. It can therefore pass under s62 LPA 1925.
4. Did it pass in this case (i.e. was it enjoyed with the farm when it was bought from the common owner?)? Yes – all previous tenants enjoyed the right, it was enjoyed with the land and reputed to appertain to it.
   C suggested that, even if the right had been acquired against the common owner, it could not be enforced against C because the common owner had not reserved any such right against them. No need to rule on this point, but would “deplore such a result” – IJO it is implied in every conveyance that each farmer who has a right to put sheep on the moor and have his neighbors repair fences, is under an ancillary obligation to keep their own fences up.

Question 7

A. Characteristics

Crow v Wood [1971]

Edmund Davies LJ

1. can duty to fence be created by express or implied grant?
2. any need to determine whether it’s an easement?
3. can it pass under s.62?

Answer 7

1. It’s clear that a duty to fence against trespassers can be created by express or implied grant,
2. but whether it’s an easement or not doesn’t need to be decided now because s62(1) LPA 1925 is so broad that an “advantage” is enough, and the obligation on others to maintain their walls is an advantage.
3. Here, C voluntarily [emphasis in original] fenced her walls for 10 years because she believed that she was under a duty to do so; whatever the legal basis of a duty to fence, it arises from the fact that the land is accustomed to be fenced, it being immaterial the purpose of fencing (ex. for one’s own protection).
   In this case (applying Wright v Macadam), it seems that the right to compel another to maintain fences is in the nature of an easement capable of arising from grant or implied grant and can pass under s62. The present circumstances furthermore give rise to a right or advantage appurtenant to each farmer to call on others to maintain their fences, which passes on conveyance.

Question 8

A. Characteristics

Egerton v Harding

Scarman LJ:

1. Is there a grant?
2. could it arise by way of grant?

Answer 8

1. Trial judge found no evidence of a grant.
2. But it is clear that it can arise by way of a grant (as a spurious easement) despite its positive nature – worth emphasizing that “the easement – be it ‘spurious’ or genuine – owes nothing to custom, from which it is totally distinct. Custom, being local law, displaces within its locality the common law; an easement is a matter of private right and obligation recognised and enforceable by the general law.”
3. For there to be an easement, it has to be proved that the property has been fenced for a period of time, and that this was done not voluntarily, but “as a matter of obligation towards the adjoining owner” (Jones v Price).
4. Rejects Edmund Davies LJ’s dictum in Crow v Wood that the obligation arose from land being accustomed to be fenced as inconsistent with Jones v Price and with principle, in that it is to be doubted whether from what is done consistently with voluntary choice as with obligation, it is possible to infer obligation.
   Thus, no easement.
5. Custom requiring the occupier of the cottage to fence against the common? Judge said yes and identified correctly the elements: immemorial origin, reasonable, continued without interruption and certain. Rejects Lord Denning’s obiter in Crow v Wood that a custom isn’t sufficient by itself to put an obligation on C to fence her land because a right to have fences kept does not arise by custom [emphasis mine]: an easement cannot arise by custom, but that doesn’t mean that there can’t be a custom to fence against the common.
   IJO “once there be established an immemorial usage of fencing against the common as a matter of obligation, the duty to fence is proved, provided always it can be shown that such a duty could have arisen from a lawful origin.” We don’t need to decide which lawful origin it is (in this case it could have been enclosure, grant, custom…) as long as we know it could have derived from one of several lawful origins.

Question 9

A. Characteristics

Liverpool CC v Irwin [1977]

Facts/Held

Answer 9

Liverpool city council owned a block of flats in which the defendant was a tenant. The common parts of the flats had fallen into disrepair. A rent strike was implemented by many of the tenants including the defendant. The council sought to evict the defendant for non payment of rent and she counter claimed for breach of an obligation to repair. However, the tenancy agreement did not mention any obligation to repair nor mention any obligation of the landlord, only the tenant’s. The defendant asked the court to imply a term that the council had an obligation to repair the common parts of the block of flats.
Held (HL): since the contractual terms are of a unilateral character, there has to be implied an easement for the tenants to use the common parts as they are an essential means of access to units in the building. Unless the obligation of repair were place in a defined manner on the tenants, it is on the landlord – it’s an obligation to take reasonable care to keep the means of access in reasonable repair and usability, recognizing that the tenants also have the responsibility according to what a reasonable set of tenants would do for themselves.

Question 10

A. Characteristics

Liverpool CC v Irwin [1977]

Lord Wilberforce

1. re implied terms in contracts
2. how is the present case different?
3. two alternatives re imposing an easement?
4. how to pick between the two?
5. concession re positive obligations and easements
6. why is this case distinct?
7. what is the standard of the obligation?

Answer 10

1. some contracts require implication (supplying what is not expressed). Sometimes, courts will imply terms into a seemingly complete bilateral contract,
2. but in this case, the court is concerned with establishing what the contract is as the parties have not done it. There must be implied an easement for the tenants to use the stairs, lifts and rubbish chutes, but does this easement mean any obligation on the landlord?
3. Two alternatives possible:
   1) Easement with no obligation except those arising under OLA 1957
   2) Easement with maintenance obligations on the landlord
4. To decide between the alternatives, we apply a test of necessity. The right to use the stairs etc. is an essential of the tenancy without which life as a tenant is not possible; to leave the landlord free of contractual obligations in these matters is inconsistent with the nature of the relationship of landlord/tenant.
5. It is true that “a mere grant of an easement does not carry with it any obligation on the part of the servient owner to maintain the subject matter”, and it may well be different if the landlord lent a whole upper floor accessible by stairs.
6. But in a case of multiple occupation where access to communal areas retained in the landlord’s occupation is essential, the obligation rests on the landlord except where it is place upon the tenants in a defined manner.
7. The standard of the obligation must not exceed what is necessary having regard to the circumstances – so it’s not an absolute obligation to repair but an obligation to take reasonable care to keep in reasonable repair and usability (but this duty was not broken in the present case).

Question 11

A. Characteristics

Liverpool CC v Irwin [1977]

Lord Cross

1. easements don’t impose obligations?
2. why this case is different?
3. should a distinction be drawn between ordinary and commercial lettings?

Answer 11

1. we start with the principle that an easement doesn’t impose any obligation on the servient owner to keep the servient tenement in good repair.
2. But in a case where a landlord lets off parts of his property to multiple different tenants retaining ownership of the common parts, the implication should be the other way around – there is an obligation to reasonable repair unless expressly excluded in the contract (relying on Miller v Hancock).
3. But should we draw a distinction between ordinary commercial lettings (Miller v Hancock applies) and lettings of council flats (council should only be under an obligation if it’s expressly assumed)? No, the differences between the two cases is not great enough to justify the distinction.

Question 12

A. Characteristics

Lord Edmund-Davies

1. difficulties in creating an express easement coupled with an undertaking to maintain it vs implying such an undertaking
2. is this principle absolute?

Answer 12

1. there’s no difficulty in creating an express easement coupled with an undertaking to maintain it by the servient owner, but there’s no reason why an implied easement can’t carry by implication a similar burden (applying Miller v Hancock).
2. But this duty of care is not absolute but qualified, because holding otherwise would “involve such a wide departure from the ordinary law relating to easements that it ought not to be held to exist unless expressly undertaken and should not be implied”.

Question 13

A. Characteristics

1. Need for dominant and servient tenement

London & Blenheim Estates v Ladbroke Retail Parks [1992]

1. Facts
2. Chancery division re parking rights

Answer 13

1. Leicestershire Coop sold part of its land to London & Blenheim, with the right to park cars on the land retained by the Coop. The agreement included a provision that if L&B were to acquire more land, it should tell the Coop in advance in order to get similar parking rights. Then, the Coop sold its land to Ladbroke. L&B wished to serve notice for more parking rights for new land it had acquired.
2. Held (Chancery Division) per curiam: the right to park cars can exist as an easement, provided that, in relation to the area over which it is granted, it is not such that it would leave the servient owner without any H reasonable use of his land.

Question 14

A. Characteristics

1. Need for dominant and servient tenement

London & Blenheim Estates v Ladbroke Retail Parks [1992]

Judge Paul Baker QC:

1. what can a valid easement involve?
   - Wright v Macadam & Copeland v Greenhalf
2. Le Strange
3. conclusion re right to park
4. right to park in the present case?
5. Held COA?

Answer 14

1. a valid easement can involve the exclusive occupation of a shed or other piece of the servient tenement (Wright v Macadam), but Copeland v Greenhalf rejected an easement for parking of vehicles on the servient tenement, without citing Wright v Macadam, but it wouldn’t have made a difference because the question is 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”. Thus, Copeland was not wrongly decided.
2. In Le Strange v Pettefar the claim by a D who habitually parked his car on C’s land that he did so by virtue of his occupancy of the land was rejected because he left his car there without objection by the owner not because he was the occupier, but because the owner didn’t object to anyone at all.

3, Thus, it’s not that the right to park cannot be an easement, but that in the particular case the parking was not in right of the occupancy of land. On the contrary, there is clear authority that in some circumstances the right to park can amount to an easement [cites authority].

4. The grant in the present case is more elaborate: the right is dependent on the continued existence of car parking facilities on the servient land. But “the essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable 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 different grant.”
   In this case, it is an easement as it’s not that invasive [but the claim still failed for unrelated reasons].
5. Held (CoA): dismissing the appeal, that for an easement to exist, there must be a dominant and a servient tenement in separate ownership, and the dominant tenement must exist and be identified before there can be a grant of an easement sufficient to bind successors of the servient land.

Though a contract to create a legal estate in favour of an unidentified person can be valid, a contract intended to be an easement cannot be an estate contract if the dominant tenement is yet to be identified. Thus, there was no easement in the present case.

Question 15

A. Characteristics

1. Need for dominant and servient tenement

London & Blenheim Estates v Ladbroke Retail Parks [1992]

Peter Gibson LJ (less useful)

Answer 15

the reason why the law requires a dominant tenement is
1) the policy against encumbering land with burdens of uncertain extent (certainty is of prime importance in matters relating to title in land: Ashburn Anstalt v Arnold)
2) the law’s reluctance to recognize new forms of burden on property conferring more than contractual rights, while “A right intended as an easement and attached to a servient tenement before the dominant tenement is identified would in my view be an incident of a novel kind”
The grant therefore did not create an easement, as the dominant tenement was uncertain; successors could not be bound until it was certain. But there was also no easement when new land was acquired, because the grant required notice to be given before an easement can be claimed.

Question 16

A. Characteristics

2. Accommodation

Hill v Tupper (1863)

1. Facts
2. Held
3. Pollock
4. Martin b

Answer 16

1. C had been entitled to the sole and exclusive right to put and let boats on a canal for the purpose of pleasure, and claims that D wrongfully disturbed C in this right by wrongfully putting and using boats on the same canal.
2. Held: C was not entitled to the sole and exclusive right to put and let boats on the canal.
3. Pollock CB: rights unconnected with the use and enjoyment of land cannot be created and annexed to the land so as to constitute a property in the grantee. The grant merely operates as a license and is binding on the grantors as between themselves and the grantee. A new species of incorporeal hereditament cannot be created at will.
4. Martin B: To admit the right would lead to the creation of an infinite variety of interests in land, and an indefinite increase of possible estates. The only effect of the grant is that as between C and the canal Company, he has the right to enjoy the advantage of the contract.

Question 17

A. Characteristics

2. Accommodation

Moody v Steggles (1879)

Facts/held

Answer 17

C claimed the right to affix a sign-board on the top of D’s house. It had been so affixed for 40 years, the two houses had formerly belonged to the same owner (D’s house was granted away before C’s), but it wasn’t sure that the sign had been affixed during the time of common ownership.
Held (Chancery Division): the easement claimed was a legal one, and that a grant of it by the Defendants’ predecessors in title to the Plaintiffs’ predecessors in title must be presumed.

Question 18

A. Characteristics

2. Accommodation

Moody/Steggles

Fry LJ

Argument 1

Answer 18

Fry J: as the sign had remained for so long, and as it’s convenient and even necessary for the enjoyment of C’s premises (as a public house), bound to presume a legal origin and continuance to that fact. “Where there has been a long enjoyment of property in a particular manner it is the habit, and, in my view, the duty, of the Court, so far as it lawfully can, to clothe the fact with right.” Thus bound to conclude that the sign-board was placed on D’s house by virtue of an easement granted by D’s predecessors to C.

Argument 1: the easement relates not to the tenement but to the business of the occupant, and therefore the easement cannot be tied to the house. But this argument is “of too refined a nature to prevail”:

1) the easement in Wood v Hewett (to have a hatch in another’s soil) prevailed even though it was only useful if C occupied it as a miller
2) the easement in Lancaster v Ere (to have a pile fixed in the waterway of the Thames) prevailed even though it was only useful if C used it as a wharf
3) the easement in Hoare v Metropolitan Board of Works (to have a sign-board fixed into the common) prevailed even though it was only useful if C used the house for some purpose that renders an invitation to the public desirable

Question 19

A. Characteristics

2. Accommodation

Moody/Steggles

Fry LJ

Argument 2 & 3

Answer 19

Argument 2: you can have an easement for the support of a sign-board from the soil direct, but not from a wall fixed into the soil, as there must be a physical connection between the dominant tenement and the easement. But the wall is part of the freehold, so there’s no reason why it can’t, and there is no law that requires this physical connection (indeed in Wood v Hewett there was no connection between the chattel and D’s land).
Argument 3: the signboard creaks, and C has no right to cause the annoyance caused by the creaking. But the sign-board creaks from its own nature; it’s not possible to expose a wide surface of metal to the wind without it creaking, and the creaking here is no more than what is naturally incidental to a sign-board

Question 20

A. Characteristics

2. Accommodation

Polo Woods Foundation v Shelton-Agar [2010]

Facts/held

Answer 20

P used land to graze horses. A parcel of land which he thought was his instead turned out to be D’s. P claimed right of easement by prescription to graze his horses on that portion. The Deputy Adjudicator of HM Land Registry concluded, applying the “real benefits” test, that the right claimed did not accommodate the dominant tenement and therefore incapable of forming the subject matter of a grant (note: profit à prendre case).
Held (Chancery Division): the Deputy Adjudicator was wrong to apply a single test of real benefit, eliding two matters that should have been kept distinct – accommodation and the needs of the estate. “Accommodation” does not need to pass any test of real or appreciable benefit to the dominant tenement: the needs of the estate is not a concept by which the question of accommodation is to be judged. Accommodation depends on a connection between the right and the normal enjoyment of the dominant tenement, and there is no requisite connection between the right claimed and the farm.

Question 21

A. Characteristics

2. Accommodation

Polo Woods Foundation v Shelton-Agar [2010]

Warren J:

Answer 21

For the condition concerning “accommodation”, start with Re Ellenborough Park (though it’s an easements decision not profit à prendre, the applicable principles are the same). Cites passage by Evershed MR in Re Ellenborough Park:

1) The test is one of “normal enjoyment”, a question of fact – in this case, rearing ponies must constitute normal enjoyment as much as growing crops or keeping a dairy herd.
2) It has to be “beneficial” – this distinguishes benefit to an individual personally, and benefit to the land.
3) The phrase “reasonably necessary” does nothing more than to emphasize that the right must be connected with the normal enjoyment of the property (it doesn’t set a hurdle below absolute necessity but above mere convenience in the way that Lord Neuberger does it in Moncrieff v Jamieson at [112]); it doesn’t mean C must show a need without which the dominant tenement cannot be reasonably enjoyed. The phrase simply means C must show that the right benefits the dominant tenement or its owner in his capacity as owner

A profit must also be limited by the “needs of the estate”, which reflects the maximum amount of any profit which the estate can reasonably enjoy for its own purposes. But this isn’t to be judged by what the estate in fact needs as a matter of practical necessity; it is not to be confused with the requirement of “reasonably necessary” for the better enjoyment of the dominant tenement (accommodation).

“There is no test of real or appreciable benefit to the dominant tenement which has to be passed before a right claimed can be said to “accommodate” it or to establish the necessary connection or nexus between the right and the dominant tenement” – the question is one of fact depending largely on the nature of the alleged dominant tenement and right granted.

There is also no “real and intelligible” benefit test either, though D tried to introduce it relying on Re Ellenborough Park (“the park should constitute in a real and intelligible sense the garden”). But this is not a general proposition that any easement must be beneficial in a “real and intelligible sense”. Introducing this threshold would be uncertain; it means something more than de minimis, but how much?

On the limit by the “needs of the estate”, Lord Chesterfield v Harris establishes that a profit may not be unlimited, and the limit must be related to the needs of the estate. C submitted that these points would be a reason to reject their claim only if they were claiming an unlimited profit (the right to graze an unlimited number of horses), and since they weren’t, the needs of the estate are irrelevant to the question of whether the right exists in the first place. No – a right to graze a far larger number than the needs of the estate (whatever that means) is no more valid than a right to graze an unlimited number. That said, it’s possible to make an express grant in respect of a number less than the limit of the “needs of the estate”.

Accommodation depends on a connection between the right and the normal enjoyment of the dominant land. The normal enjoyment includes the rearing of ponies; the profit is enjoyed by the grazing of ponies. Arguments about whether a benefit to the ponies is also a benefit to the farm or whether the ponies are rendered happy are beside the point.

At [121]: The right to graze was inevitably going to reduce the rights of the servient owner: that is true of any easement. The question is whether the particular right claimed interferes with the rights of the servient owner to such an extent that he is excluded from possession and control or is left with no reasonable use for his land (whichever of the two is correct). But the claimant of the right didn’t show any reasonable use, except by saying that the right cannot be defeated merely because the servient owner cannot use the land to graze their own horses. They didn’t identify any reasonable use.

Question 22

A. Characteristics

3. Owned/occupied by different persons

Answer 22

Obvious that a person cannot own/have easement over own land

However, not fatal that person own fee simple in both plots; common for tenant to have an easement over landlord’s land = a quasi-easement

Question 23

A. Characteristics

4. “Capable of grant”

Phipps v Pears [1965]

Answer 23

The owner of two adjoining houses pulled down one and built another in its place with its wall against the other house, the walls not bonded together. He then sold the newly built one to C. The old house was then conveyed to D. Then D demolished his house, leaving the wall of C’s house exposed to the weather, causing damage. C claimed an infringement of the right of protection from the weather provided by D’s house in favour of the owner of C’s house. Judge dismissed claim. On appeal, further claimed that the benefit of protection was an “advantage” appertaining to C’s house which passed under s62 LPA 1925.
Held (CoA): the right to be protected from the weather is not an easement known to the law. Further, that C could not rely on s62 LPA 1925 because for that section to apply, the right or advantage must be one known to the law, in that it was capable of being granted at law so as to be binding on all successors in title, even those who took without notice, and a right to protection from the weather is not one such right (Wright v Macadam applied).
Per Lord Denning: every man is entitled to pull down his house if he likes; if it exposes your house to the weather, that is your misfortune and no wrong on his part.

Question 24

A. Characteristics

4. “Capable of grant”

Phipps v Pears [1965]

Lord Denning

1. re positive/negative easements
2. right to support
3. quote re ‘every man is entitled…’
4. s. 62 point

Answer 24

1. There are two kinds of easement – positive easements (ex. right of way) which give the owner of land a right to do something on their neighbor’s land, and negative easements (ex. right of light) which stops the neighbor from doing something on their own land. The right of support doesn’t fall easily into either category.
2. A right to support is somewhat of a positive easement, in that the dominant wall exerts a thrust on the servient tenement, but a right to protection from the weather is entirely negative – a right to stop one’s neighbor from pulling down their own house. Thus, it must be looked at with caution as the law has been very wary of creating any new negative easements (ex. no right to prospect or view, so that if your neighbor wants to build and obstruct a view you’ve enjoyed for a long time, you have no redress: the only solution is to create a covenant binding only on the neighbor, and in equity on any buyers with notice of the covenant). The reason is that it would unduly restrict the neighbor in his enjoyment of his own land, hamper legitimate development.
3. “Every man is entitled to pull down his house if he likes. If it exposes your house to the weather, that is your misfortune. It is no wrong on his part.” Same with cutting down trees.
4. The s62 point fails because for section 62 to apply, the right or advantage must be known to the law in the sense that it must be capable of being granted at law so as to be binding on successors, even those who take without notice.

Question 25

A. Characteristics

4. “Capable of grant”

Batchelor v Marlow [2003]

Facts/held

Answer 25

D (in connection with their business of repairing cars at garage premises) parked cars on a strip of land owned by C. D entered a caution against first registration of the land including the strip, claiming that they regularly parked cars there for over 20 years. C sought the removal of the caution and a declaration that D were not entitled to park cars on the strip. Judge found against C, declaring that D had acquired an exclusive prescriptive right to park up to 6 cars on the verge on weekdays between 8:30-6:00.
Held (CoA): allowing appeal, that the right claimed would deprive the servient owner of any reasonable use of their land, and was incapable of subsisting as an easement. Whether such a right would do so is a question of degree and depends on the facts of each case. In this case, it would deprive the servient owner of any reasonable use of land, and is not capable of being an easement so incapable of being acquired by prescription.

Question 26

A. Characteristics

4. “Capable of grant”

Batchelor v Marlow [2003]

Tuckey LJ

Answer 26

Does an exclusive right to park six cars for 9½ hours every day of the working week leave the plaintiff without any reasonable use of his land, whether for parking or anything else?” If we ask the question whether C would have any reasonable use of the land for parking, and the answer must be ‘no’ – he has no use at all during the whole of the time that parking space is likely to be needed.

If we ask whether C has any reasonable use of the land for any other purpose, the answer is even clearer: his right to use the land is curtailed altogether for intermittent periods throughout the week, and such a restriction would make his ownership of the land illusory.

Question 27

H Smith, Rights of Parking and the Ouster Principle after Batchelor v Marlow [2007]

Intro

Answer 27

The article is concerned with when and under what circumstances an easement of parking will be legally recognized. Difficulties arise because of the application of [what author calls] the “ouster principle”: an easement cannot arise where the effect is to exclude the beneficial owner from all reasonable use of their land subject to the easement.
The application of the principle appears subject to exceptions and strictness is debatable. Must look at authorities then application to parking cases.

Question 28

H Smith, Rights of Parking and the Ouster Principle after Batchelor v Marlow [2007]

1. Ouster principle

Answer 28

Foundation: Dyce v Hay (“there can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected”).

Examined in AG of Southern Nigeria v John Holt (Privy Council): was argued that storage could not be an easement since it was unknown to the law, PC disagreed and their speech has rightly been taken as acceptance of the principle that a right of storage can exist as an easement.

Wright v Macadam (CoA): validated a right to use a coal shed in the garden of the house as an “easement which the law will clearly recognize”. It can be said that there was an ouster from the coal shed, but the right was validated. Authors argued that the report didn’t expressly state that the use was exclusive, but there’s no suggestion that it was shared or that the sharing was critical to the existence of the right to use the coal shed as an easement.

Leading case in the area: Copeland v Greenhalf. Upjohn J: the claim really amounts to a claim to a joint user of the land by D; practically, D is claiming the whole beneficial user of the strip of land. That is not a claim which can be established as an easement. It is virtually a claim to possession of the servient land. Some said Wright was inconsistent with Copeland.

London and Blenheim v Ladbroke Retail Parks: argued at first instance that Copeland was wrongly decided (inconsistent with Wright). Argument rejected as the matter is one of degree – a small coal shed in a large property is one thing; the exclusive use of a large part of the servient tenement is another (Judge Paul Baker QC).

Thus, distinction relates to the size of the property over which the easement is claimed. “Many commentators have accepted as authoritative this reconciliation of the two authorities.” If correct, it means the ouster principle doesn’t apply where the area in question from which the owner is ousted is small in comparison to the size of the servient tenement.

Principle discussed in Re Ellenborough Park and held not to apply on the facts: “the right conferred nomore amounts to joint occupation of the park with its owners, no more excludes the proprietorship or possession of the latter, than a right of way granted through a passage” (Lord Evershed). Thus, CoA concluded that “even relatively remote possible uses on behalf of the beneficial owner would suffice to prevent the ouster principle from applying”.

Miller v Emcer (CoA rejected the ouster principle in a case about the right to shared use of a lavatory, untroubled by the fact that the use entailed exclusion of the owner during the period of use): “this in greater or less degree is a common feature of many easements (for example, rights of way) and does not amount to such an ouster of the servient owner’s right as was held by Upjohn J. to be incompatible with a legal easement in the case.”

Jackson v Mulvaney (facts similar to Re Ellenborough Park but acquired by prescription not grant): the difference between grant and prescription is that grant cases are pre construction of the grant and the court should lean in favour of an easement if such is the intention of the parties and the right can exist in law as an easement, whereas in an easement, the court must assess the evidence as to alleged use to determine whether the right has been established. But if satisfied that the land has been made use of for the requisite period, and the right is capable of being an easement, the court should not be deflected from declaring the easement (Latham LJ).

Question 29

H Smith, Rights of Parking and the Ouster Principle after Batchelor v Marlow [2007]

II – Car Parking Cases

Answer 29

First case: Newman v Jones. No doubt that a right to park a car anywhere in a defined area is capable of existing as an easement (Sir Robert Megarry VC), even if it took effect subject to others with the like right.

London and Blenheim Estates: the right was an express right to “park cars on any available space in any part of the retained land set aside as a car park”, the issue being whether it was possible to add to the dominant tenement after the servient land had been transferred (no, therefore easement failed). But in first instance considered whether right of parking can be an easement (yes, but not if the right “is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else”). Thus, express recognition that parking easements may fail for the ouster principle, but wording: without “any reasonable use of his land”.

Saeed v Plustrade: right to park over an area “as may from time to time be specified by the lessor as reserved for car parking”. CoA left open question of whether the right to park can exist as an easement, concluding that even if he didn’t have an easement, he still had the contractual right to park on any available space. But how can this right bind successors if it didn’t have the nature of an easement? The CoA’s comments are questionable.

Batchelor: parties argued that there should be a different test for prescription and express grant, but CoA didn’t decide on this case, assuming that they were the same test [cites CoA judgment above].

Question 30

H Smith, Rights of Parking and the Ouster Principle after Batchelor v Marlow [2007]

III – Conclusion

Answer 30

The ouster principle is alive, but there are exceptions. Easements to park can exist despite the hesitancy in Saeed:
1) A right to park a vehicle in competition with others in a space larger than needed to park that vehicle is valid, as the parking of the car will not require use of the entirety of the land and the beneficial owner cannot be said to have been ousted.
2) It will be an easement if the landlord reserves the right to relocate the parking space, even if the parking of the car uses up the entirety of the space allotted (situation described at first instance in London and Blenheim where the owner could terminate the parking)
3) A grant of a single parking space will probably succeed on the Wright principle (small part of the servient tenement) as distinguished from Copeland at first instance in London and Blenheim
Difference between express grant and prescription/implication? In Copeland possibility raised that the law might look more leniently on express grants, but unconvincing to say that there should be any difference in principle, though:
1) It might be harder in prescription cases to define the extent of the easement and therefore it may fail on the ground of uncertainty (Mulvaney v Gough)
2) It might be harder to apply the Wright exception and argue that the alleged servient land is no large part of the entire land.
Another difficulty: application of the ouster principle – what hypothetical reasonable use by the servient owner will defeat the ouster principle?
1) London and Blenheim: leaving the owner without any reasonable use of the land (narrow test)
2) Batchelor: easy to conceive of uses (ex. underground drainage, use at weekends: would it have made a difference if the owners actually used it on weekends?)… The case is inherently difficult; hoped that HL would overrule it. In Re Ellenborough Park the court considered that relatively theoretical uses (ex. picking flowers) would suffice, and author submits that the principle should only apply if (as in Copeland) C was claiming an unrestricted right to use the land as they wished.

Question 31

Moncrieff v Jamieson [2007]

4. “Capable of grant”

Facts/held

Answer 31

An easement was granted over the servient land for vehicles (for unloading goods and persons) to access dominant land, which was difficult to access; due to this difficulty, did the easement permit vehicles to park on the right of way too?
Held: in Scottish law, the servitude to park is capable of being constituted as ancillary to a servitude right of vehicular access, the test being whether it was necessary for the comfortable use and enjoyment of the servitude (and per Lord Roger, essential to make the servitude effective). In this case it is established, and because it doesn’t create an undue burden on the servient tenement, it was unnecessary to set a limit on the number of vehicles that can be parked.

Question 32

Moncrieff v Jamieson [2007]

4. “Capable of grant”

Lord Scott:

Answer 32

there doesn’t seem to be relevant differences between the law of easements in England and Wales and the law of Scotland relating to servitudes.
The principle of civiliter (applies also in English law, but not so named) requires the dominant owner to exercise the right reasonably and without undue interference with the servient owner’s enjoyment of their own land; the converse is that an interference by the servient owner will not be actionable unless it prevents the dominant owner from making a reasonable use of their servitude (ex. building something that encroaches a 10-foot right of way by 1 foot).
In this case, most important question is whether the admitted right of vehicular access entitles them to park on D’s land. A grant of vehicular access doesn’t necessarily, or usually, carry such a right; whether it does depends on whether the right to park can be an easement, and if so, whether it is on the facts.]
On whether the right to park can be an easement and not merely a contractual right: there is no doubt that it can, and if there is, this doubt should be dispelled. Two qualifications:
1) Derived from the principle of civiliter: the right must be such that a reasonable use thereof by the owner of the dominant land would not be inconsistent with the beneficial ownership of the servient land by the servient owner. Will examine the ouster principle (no servitude that would prevent any reasonable use of the servient land), but it’s true to the extent that it means that a servitude must not be inconsistent with the continued beneficial ownership of the servient land by the servient owner (eg. must not bar servient owner from possession or control of the land – it can be a grant of a fee simple or license but not servitude).
2) Grant cannot require any positive action undertaken by the servient owner (ex. the grant of a right to use a neighbour’s swimming pool can never qualify as a servitude, as the owner would not be under an obligation to keep it full of water and grantee would be in no position to fill it if the grantor chose not to – such a right can only be an in personam right).
Argument that the right claimed deprives D of any reasonable use of the land, and is therefore inconsistent with their ownership and should not be recognized as a servitude (i.e. ouster principle). Every servitude will bar some ordinary use of the servient land; indeed every servitude bars any use of the servient land (ordinary or otherwise) that interferes with the reasonable exercise of the servitude.
Some suggest that Wright v Macadam turned on whether C had sole use of the coal shed, but sole user is “quite different from, and fundamentally inferior to, exclusive possession.” If the shed had been locked and only the dominant owner had the key, would be ready to regard it as inconsistent with the nature of a servitude, but sole use for a limited purpose is not inconsistent.
[Cites Copeland and Blenheim’s attempt to reconcile the two.] This attempt to reconcile the authorities was addressing the wrong point: the servient land is the land over which the servitude is enjoyed, not the totality of the surrounding land which the servient owner happens to own. If in Wright the servient owner were to sell off the rest of the land but the shed, would it destroy the easement? Surely it can’t be open to the servient owner to do this, and it would fail because the servient land was never the whole estate but the land on which the shed stood.
[Cites London and Blenheim test as applied in Batchelor (‘reasonable use’ test)] This test needs to be qualified; it is impossible to state that no use can be made of land over which he has granted parking rights (he can build above or under it, put up advertising walls), and who is to say that these uses aren’t reasonable?
But it’s the test itself (and not its uncertainty) that is the main problem; why can a landowner not grant servitudal rights of any extent that they wish?
There’s no difference between an easement acquired by grant and one acquired by prescription.
Should replace the test by one that asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land.
In this case, the servient owner retains possession and control; they can do anything they want with it subject to C’s right to park, and C can only park. Thus, the ouster principle is inapplicable.
[Cites Hill-Smith’s article with approval]

Question 33

Moncrieff v Jamieson [2007]

4. “Capable of grant”

Polo Woods Foundation v Shelton-Agar [2010]

Answer 33

“Although Moncrieff v Jamieson casts considerable doubt on the correctness of the decision in Batchelor v Marlow, (…) the latter case is binding on me as a matter of law particularly in a case of prescription rather than express grant. The question for me then is whether (…) the test derived from Batchelor v Marlow would not defeat the right claimed in the present case.”

All easements inevitably reduce the rights of the servient owner. “The question in any particular case is whether the particular right claimed interferes with the rights of the servient owner to such an extent that he is excluded from possession and control or is left with no reasonable use for his land (whichever of the two is correct)”.

In this case, the right is a substantial interference with the use of the land by the servient owners; in the winter months they have full use, but they can’t do anything permanent on it. It wouldn’t be fair to regard the potential winter use as sufficient to rebut the suggestion that they are excluded from any reasonable use of the land – where the right is exercisable over eight continuous months each year, the question must focus on these months alone.
[But in the end concluded that there was no ouster because there were uses during the day that were reasonable, that were not curtailed by the use of the land at night].

Question 34

Moncrieff v Jamieson [2007]

4. “Capable of grant”

Miller v Emcer Products [1956]

Answer 34

Tenant was granted the right to use two lavatories on upper floors occupied by a third person. The third person prevented the tenant from using this right, who sued the landlords alleging a breach of an implied covenant that they had a good title to convey the right to use the lavatories.
Held (CoA): the right was a legal easement.
Romer LJ: argued that the lessors had no title to grant the tenant the right to use the lavatory, so that the purported grant amounted to merely an agreement to grant a license or an easement. No – can’t do this merely because it subsequently transpired that the lessors had no title; the lessors thought that they had, and unequivocally attempted to do so, and no question of an agreement to grant some future interest arises.
Question remains: is it a license or an easement? It’s true that during exercise by the dominant owner, the servient owner would be excluded, but this is a common feature of many easements and does not amount to such an ouster of the servient owner’s rights as was held by Upjohn J to be incompatible with a legal easement in Copeland v Greenhalf.
This is not dissimilar to the right to use neighbour’s kitchen, which can be an easement.

Question 35

Moncrieff v Jamieson [2007]

4. “Capable of grant”

Rance v Elvin (1985)

Answer 35

Seller conveyed part of their land to C, conveyance including the grant of a right to free and uninterrupted flow of water through pipes under seller’s retained land. Provision was made for contribution to costs but not payment. Seller then conveyed remaining land to D2, subject to the easements granted or reserved by the earlier conveyance. The water was paid for through a meter situated on D2’s land and paid by D2; C sought a declaration that he had the benefit of an easement for an uninterrupted supply of water passing through the meter and paid for by D2 (though he was prepared to pay a proportion of the charges).
Trial judge held that easements in general imposed negative obligations on servient owners, thus, the action failed because his right was incapable of constituting an easement as it imposed positive obligations on the servient owner (to pay so as to maintain an uninterrupted flow).
Held (CoA): there was an easement for the passage of any water coming through the pipes; any physical interference by D2 was an actionable interference with the easement, but D2 had no obligation to ensure that any water came into the pipes. Per curiam C is liable under an implied obligation to reimburse D2 for its expenditure on water supplied to C.

Question 36

Moncrieff v Jamieson [2007]

4. “Capable of grant”

Rance v Elvin (1985)

Browne-Wilkinson LJ

Sir George Waller

Answer 36

Browne-Wilkinson LJ: C on appeal submitted that the trial judge wrongly identified the easement by not drawing a distinction between the right to a supply of water (not claimed) and a right to the uninterrupted passage of any water that may come into the pipes (claimed); the positive obligation to pay is not an incident of this right. This is correct; it isn’t the right to insist on someone else ensuring the presence of water in the pipes but merely not to interrupt it (if D2 refused to pay the water company, that’s fine).
Had there been no meter, it would no doubt have been an easement; the fact that there is a meter doesn’t defeat it.
Sir George Waller: the obligation is not a duty to supply water, but merely a duty to allow water to flow along the pipe. If D2 didn’t pay so the water company cut off supply, there would be no ground of action. Thus it’s a negative easement – to allow the pipe to flow and not interrupt it.

Question 37

Luther, “Easements and exclusive possession”, 16 LS 51 (comment on Copeland v Greenhalf)

Intro

Answer 37

Copeland is usually taken as authority for the proposition that an easement will fail if it amounts, in effect, to a claim of exclusive possession of the servient land. Upjohn J made reference to “joint user” and “the exclusion of the owner”, which have been an embarrassment for subsequent courts; Copeland has been distinguished more frequently than it has been followed (generally by statement that it is a matter of degree).
Subsequent caselaw has shifted away from whether a claimed easement amounts to an exclusion of the owner, to whether it’s a “substantial interference” with the owner’s rights. Copeland is hard to analyze, and has also been pointed out as potentially contradictory to Wright v Macadam, decided by a higher court.

Question 38

Luther, “Easements and exclusive possession”, 16 LS 51 (comment on Copeland v Greenhalf)

I – Exclusive possession

Answer 38

It’s hard to see where this principle may have originated; there are nineteenth century cases that gave clear indications of at least some characteristics of an easement, none of which supports the view that the courts were concerned about the “exclusive” character of a claimed right – these cases appear to support the principle that it doesn’t matter if a claimed easement excludes the owner, provided that there is some clear limit as to what C can do on the land (it’s what C can do, and not what the servient owner cannot do, that matters).

In Reilly v Booth, there was a grant of exclusive use of a piece of land (grantee then installed a bookstall in it, painted on the walls, affixed advertising, and fitted unseemly gas lamps. CoA said it passed ownership of the land, and couldn’t be an easement not because it exluded the servient owner but because it was too uncertain:

“There would be difficulty … in granting by way of easement the right to use, not defining it in any way, a gateway … But it may be …. that the grant of an exclusive use for ever of this passage does convey the property in that passage” (Cotton LJ). [But this quoted passage could show that it failed because it was an exclusive use, couldn’t it?]
Indeed Loopes LJ: “The exclusive or unrestricted use of a piece of land … passes the property or ownership in that land, and there is no easement known to law which gives exclusive and unrestricted use of a piece of land”. But unclear whether Loopes LJ considered “unrestricted” and “exclusive” to be interchangeable, but (IAO) here exclusive use made the easement fail not because it excludes the owner but because it is too uncertain!

Question 39

Luther, “Easements and exclusive possession”, 16 LS 51 (comment on Copeland v Greenhalf)

II – Copeland v Greenhalf and Uncertainty

Answer 39

The statements referring to “exclusive possession” appear to date back to AG of Southern Nigeria v John Holt, where R unsuccessfully claimed an easement to store trade goods on the reclaimed land because (according to Upjohn J in Copeland) “there cannot be an easement over land of which the claimant is in exclusive possession”. But this is “deceptively simple” [according to author]; they were in exclusive possession but that’s not why their easement failed (it failed because they were claiming too wide a range of rights) – indeed Lord Shaw [giving the judgment of the PC] said there was nothing wrong with an easement of storage though such an easement necessarily excludes the owner.

There are two categories of cases:

1) If a claim amounts to exclusive possession properly speaking (i.e. the right to perform an unlimited range of activities on the land, necessarily to the exclusion of the owner) then it can’t be an easement either by grant (Reilly v Booth) or prescription (AG of Southern Nigeria v John Holts), because it would be “inconsistent with the proprietorship or possession of the alleged servient owner” (Evershed MR, Re Ellenborough Park).

2) If a claim falls short of exclusive possession properly speaking (because they don’t exclude the owner absolutely, or they don’t involve a claim to perform an unlimited range of activities), then Upjohn J seems to think (in accordance with authority) that the correct test is certainty.
But Upjohn J didn’t identify which category the present case fell into, easily causing a “misunderstanding” [author]: the focus could all too easily shift from “possession” to “exclusion”, leading to the argument that a claim to a limited right should fail because it would exclude the owner. This “misunderstanding” can be seen in counsel’s arguments in Ward v Kirkland and Miller v Emcer; the rights claimed were not exclusive possession or joint user because they were clearly defined and limited (in that C knew what they could and couldn’t do on the servient land). In both cases counsel focused on “exclusion” (the right somewhat excluded the owner), and both were rejected on the “matter of degree” approach, but the rejection could have been more convincing if it had analysed Copeland in terms of certainty not effect on servient owners.
This interpretation of Copeland also makes it easier to understand Wright v Macadam. Existing approaches to reconciling Wright and Copeland (i.e. denying that the owner in Wright had been excluded (Grisby v Melville) or the “substantial interference” test (London and Blenheim)) have been unconvincing. There would be much less difficulty if the cases were analysed in terms of certainty of the right claimed; in Wright there is a very precise limit (definite number of people, to perform a definite activity, in a defined space) whereas in Copeland the right is uncertain in its nature, extent and number of people.

Question 40

Luther, “Easements and exclusive possession”, 16 LS 51 (comment on Copeland v Greenhalf)

III – Conclusion

Answer 40

Instead of applying the exclusion or substantial interference approaches, we can ask what the claimant can do (certainty approach). It can be said that this is the same as asking what the servient owner can’t do, and indeed in hard cases a line will still need to be drawn. But positive assessments are easier to make than negative ones.

Question 41

B. CREATION

1. Express grant/reservation

Law of Property Act 1925 ss 52

Answer 41

52 Conveyances to be by deed.

(1) All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.
(2) This section does not apply to—
(g) conveyances taking effect by operation of law.

Question 42

B. CREATION

1. Express grant/reservation

65 Reservation of legal estates.

Answer 42

(1) A reservation of a legal estate shall operate at law without any execution of the conveyance by the grantee of the legal estate out of which the reservation is made, or any regrant by him, so as to create the legal estate reserved, and so as to vest the same in possession in the person (whether being the grantor or not) for whose benefit the reservation is made.
(2) A conveyance of a legal estate expressed to be made subject to another legal estate not in existence immediately before the date of the conveyance, shall operate as a reservation, unless a contrary intention appears.

Question 43

B. CREATION

1. Express grant/reservation

St Edmundsbury Diocesan Board of Finance v Clark [1975]

Facts/held

Answer 43

The Diocese had sold land surrounding a church to C. It reserved a right of way across C’s land to get to the church from the public highway. The question was whether this was a right of way on foot only or whether the easement also included access for vehicles.
Held (CoA): pedestrian right of way only; the words granting a right of way are to be understood according to the natural meaning of the words used in the document as a whole and read in the light of the surrounding circumstances. Here the physical state of the pathway was such as to indicate that only a pedestrian access was intended. The maxim omnia praesumuntur contra proferentem will only be used as an aid to construction if the court were unable to reach a sure conclusion from the wording and the facts.

Question 44

B. CREATION

1. Express grant/reservation

St Edmundsbury Diocesan Board of Finance v Clark [1975]

Sir John Pennycuick

Answer 44

On the proper approach to the contruction of a conveyance containing the reservation of a right of way: it’s the approach upon which the court construes all documents, i.e. must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.
Party contended that the proper method was first construe the words in isolation and then look at whether circumstances require the prima facie meaning to be struck down. No – contrary to well-established principle.

On the applicability of the maxim omnia praesumuntur contra proferentem” against the vendor or purchaser where there is a conveyance subject to the reservation of a new right of way: this presumption can only come into play if the court finds itself unable on the material before it to reach a sure conclusion on the construction of a reservation; it’s not a factor taken into account in reaching the conclusion.
Here we have reached a sure conclusion: it turns on the true construction of s65(1) LPA 1925, which must be read in light of two aspects of the preceding law:

1) the previous law permitted the language of mere reservation to have the effect of a regrant, though it’s not a regrant by its language
2) for this purpose, the purchaser muse executed the conveyance if an easement was to be created, although a regrant in terms was not required

Thus, the effect of the previous law was that “mere words of reservation could be regarded as having the same effect as would the language of regrant though without there being in terms any purported regrant by the purchaser” – does s65 (“without … any regrant by”) simply maintain this situation absent only the need for the purchaser to execute the conveyance, or does it change it so that the purchaser is no longer to be regarded as the relevant proferens? It should be the former.

In the present case, the strip did not look like a road and people would not think of taking a car along it, but the other party relied on the fact that the strip was wide enough and firm enough for vehicles (this is important, but not conclusive: the strip may still not be adapted or appropriate for cars). He also said that from time to time building materials would have to be taken to the church and there was no other route.

In any case, even if there’s no vehicular right of way, there might still be a vehicular right of way of necessity to the church for this purpose, but it would be open to the servient owner to select any reasonable route.
The surrounding circumstances are a matter of fact for the trial judge, and Megarry J was entitled to reach his conclusion.

[Before 1926 an easement purporting to be reserved by the grantor was in truth granted by the grantee,61and for this reason an easement reserved to the vendor in a conveyance not executed by the purchaser took effect in equity only.62Section 65 of the LPA 1925provides,63however, that after 1925, (1) a reservation of a legal estate operates at law without any execution of the conveyance by the grantee of the legal estate out of which the reservation is made, or any regrant by him (…).In spite of the absence of execution by the grantee, the reservation operates by way of regrant by him. For the purposes of the rule that in the event of doubt upon the construction of a grant it should be construed against the proferens, the grantee is still to be regarded as the proferens, so that the reservation will be construed against him and in favour of the grantor of the servient tenement.]

Question 45

B. CREATION

3. Other modes of acquisition

(i) Necessity/common intention
Nickerson v Barraclough [1981] Ch 426

Answer 45

C has a field landlocked except for a lane belonging to D. When C acquired the land, in the conveyance it was said that the vendors did not engage to build any roads along the path and there was no right of way until the roads were (if ever) made. C claimed one under s62(1) LPA 1925.
Held (Ch Div): at the time of the conveyance the land was not landlocked, so there was no implication by necessity.

Brightman LJ: C argues that there is an easement by (inter alia) implied grant by the conveyance: it’s clear that the conveyance was so that the buyer would build on the plots of land, so must consider what rights of way must be included as a matter of necessary implication to give effect to the apparent purposes of the conveyance, but this decision must be in light of express stipulation, and vendor didn’t give any rights of way until the roads should be made.

C didn’t plead a right of way by necessity (in any case the land wasn’t landlocked at the time of the conveyance), but a right of way by necessary implication to give effect to the purpose of the conveyance (the development of the plot by building houses on it) – thus he relied not on necessity but construction.

What is the basis for necessity? For Megarry VC, it is “a way implied from the common intention of the parties, based on necessity apparent from the deeds”, but for Brightman LJ, it’s not based on public policy (which cannot aid the construction of the agreement), but the circumstances and the parties’ intentions derived therefrom. Easements of necessity must arise from a grant, and not by ex. adverse possession, from which there is no agreement from which to derive an intention.
In the case at hand, must examine the conveyance against past history and look for the interpretation that would best fit the circumstances. In these circumstances, no easement can be implied in the face of the express terms of the conveyance.

Case authority for the proposition that:

1) For an easement of necessity to arise it is generally essential that the retained land would be absolutely inaccessible or useless without it.
2) The doctrine of way of necessity is founded upon an implication from the circumstances and rejected the suggestion468that public policy was a possible foundation of the doctrine; thus, the suggested implication can be negative by the express terms of the transaction.
3) S62 LPA 1925 is not concerned with future rights.

Question 46

Bodkin, Easements of Necessity and Public Policy, (1973) 89 LQR 87 (NOL)

Answer 46

but basically says that easements of necessity should be based on public policy and not intention

Question 47

B. CREATION

3. Other modes of acquisition
   (i) Necessity/common intention

Pwllbach Colliery Ltd v Woodman [1915]

Answer 47

D had a lease of land authorizing mining to be carried on; C got a lease of neighbouring land subject to all easements belonging to C. D then built a screening apparatus that threw up coal dust; C sued for nuisance.
Held (HL): the lease authorizing the mining did not authorize the nuisance, unless it could be proven that the trade could not otherwise be continued. There was no easement for making coal dust.

Question 48

B. CREATION

3. Other modes of acquisition
   (i) Necessity/common intention

Pwllbach Colliery Ltd v Woodman [1915]

Loreburn;
Atkinson;
Parker;
Summer
Parmoor

Answer 48

Earl Loreburn: it’s unnecessary to consider whether the right to spread dust over a servient tenement constitutes an easement in law, because the lease doesn’t authorize anyone to commit a nuisance – it only grants permission to carry on a business (very different from permission to create a nuisance). If it could be proved that the business couldn’t be carried on without committing a nuisance, so that everyone must have known that the purpose was to commit a nuisance (or if a particular method which necessarily results in a nuisance), then it would have been different.
Lord Atkinson: “what must be implied is, not a grant of what is convenient, or what is usual, or what is common in the district, or what is simply reasonable, but what is necessary for the use and enjoyment, in the way contemplated by the parties, of the thing or right granted.” In this case, the business could have been carried out without causing the nuisance.
Lord Parker: apart from implied grants of ways of necessity, or continuous and apparent easements, the cases where an easement can be granted by implication can be classified under two heads:
1) The right in question is necessary for the enjoyment of some other right expressly granted (ex. right of drawing water from a spring necessarily involves going to the spring for that purpose) (but the nuisance is not necessarily incidental to D’s mining operations)
2) The right in question is necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner in or purpose for which the land is granted/retained. It must be necessary that the parties inted that the land should be used in some definite and particular manner; not enough for it to be intended to be used in a manner which may or may not involve this definite and particular use.
There’s no evidence that A’s usage that led to the coal dust falling on the neighbour’s land (the buisance) was in the contemplation of the parties when the sub-lease was granted.
Lord Summer: the sub-lease cannot be read as empowering A to erect and use the plant even at the cost of causing a nuisance.
Lord Parmoor: no right to cause the nuisance could be inferred as being the common intention of the parties unless it could be said that it was “practically impossible to carry on the business of mining upon the demised site without causing a nuisance”, of which there was no evidence.

Question 49

B. CREATION

3. Other modes of acquisition
   (i) Necessity/common intention

Wong v Beaumont Property Trust Ltd [1965]

Answer 49

Wong leased a basement for his restaurant, the lease providing that he must comply with health regulations and not cause nuisance to the landlord or other occupiers. The vent was inadequate so that a larger duct was needed; the landlord objected.
Held (CoA): an easement could be implied so Wong could comply with his obligations under the lease, as a ventilation system was necessary in order that the business could legally be carried out (Lord Parker’s dicta in Pwllbach applied).
Per Lord Denning: Although it was not realised by the parties at the time of the lease that this duct would be necessary, it was in fact necessary from the very beginning and that is sufficient to bring the principle into play
Lord Denning: if Wong has the right to put up a duct without the landlord’s consent, it must be by easement and not implied contract, because they weren’t the original tenants nor the landlords the original landlords. This case fits into the second category of cases identified by Lord Parker in Pwllbach.

Question 50

B. CREATION

3. Other modes of acquisition
   (i) Necessity/common intention

Donovan v Rana [2014]

Facts/held

Answer 50

C sold a plot of land adjoining their property, transfer including an express grant of right of way over their retained land “for all purposes connected with the use and enjoyment of the property but not for any other purpose” and providing that no other easement should be deemed expressly or impliedly granted.
D (successors to the original transferee) built a new house and dug up the servient tenement to connect the utilities to the mains services in the road. Judge said there was a common intention easement as it was the common intention of the original transfer that the building plot would be used to build a modern dwelling house that complied with all local authority requirements, with modern facilities connected to the street, and there was a common intention have connections to the utilities.
On appeal, argued that the transfer expressly excluded any implied easements, and that there was no common intention that the new house would be connected to normal utilities.
Held (CoA): the express provision of the transfer did not exclude the implied easement, which exists; the express right of way included the purpose of laying of connections to utilities; no additional right of way was required (the grant referred to “right of way” and not “right of way or access”, but if there is indeed an easement of necessity allowing connections to be laid, a right of way to facilitate it would already exist on the servient land. Additionally, an implied easement of necessity can be inferred from the common intention of the parties; the transfer was to build a dwelling house, the dwelling house being intended to be to the satisfaction of the local authority. The building plot was in a much sought-after residential location, such that the connection to the mains utilities was necessary and not merely reasonable or desirable – it was the common intention of the parties

Question 51

B. CREATION

3. Other modes of acquisition
   (i) Necessity/common intention

Donovan v Rana [2014]
Vols LJ

Answer 51

the question is whether the suggested easement could be implied or inferred from the common intention of the parties as to the building of a dwelling-house.
The party first argued that the express wording of the transfer excluded further easements.
However, the plot was advertised as “a super individual building plot situated in a pleasant residential area in the sought after area of Chalk, where building plots are extremely rare” and the terms of the transfer said that the dwelling was intended to be erected “to the satisfaction of the Local Authority”. The plot is in fact in a much sought after residential area, a fact reflected in the price paid; the suggestion that a house might in such an environment be expected to be constructed without connections to the mains just a few meters away is a “somewhat optimistic submission”.
Then party then argued that connection wasn’t necessary but merely reasonable, desirable or even normally to be expected, and therefore doesn’t fulfill the Pwllbach requirement par Lord Atkinson. But Lord Atkinson’s formulation must be read in context, and demonstrates only that an implied grant had to be based on more than merely reasonableness or usual practice, but had to be necessary for the use and enjoyment of the right granted in the way contemplated by the parties. In this case, it was necessary for the purpose obviously contemplated by the parties to the original Transfer. “The implication of the proposed easement is, in the context of this transaction in the modern times in which it took place, relating to this building plot in this locality, entirely necessary to give effect to the inferred common intention of the parties to the Transfer.”

Question 52

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Wheeldon v Burrows (1879)

Answer 52

A workshop and adjacent piece of land belonged to the same owner; the land was sold first then the workshop sold to a different owner later. The workshop had windows receiving light from the land.
Held (Ch Div): as the vendor had not when he conveyed the piece of land reserved the right of access of light to the windows, no such right passed to the purchaser of the workshop, and that the purchaser of the piece of land could build so as to obstruct the windows of the workshop. There could be no implied reservation either.

Question 53

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Wheeldon v Burrows (1879)
Thesiger LJ:

Answer 53

Two propositions can be stated from authorities:

1) On the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (quasieasements [i.e. rights that couldn’t be easements because of common ownership, but will mature into easements upon sale or lease]), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted (=rule in Wheeldon v Burrows; only applies to grants of easements or when sale of both plots is simultaneous, and not reservation (cf below))
2) If the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. This is open to exceptions (ex. ways of necessity)

Both rules are founded on maxim that a grantor shall not derogate from his grant. Thus, there is a difference between implied grant and implied reservation: “in the case of a grant you may imply a grant of such continuous and apparent easements or such easements as are necessary to the reasonable enjoyment of the property conveyed,and have in fact been enjoyed during the unity of ownership, but that, with the exception which I have referred to of easements of necessity, you cannot imply a similar reservation in favour of the grantor of land”.

Are there other exceptions? Don’t need to decide this point, but seems that where two houses have existed for some time, each supporting the other, then it is not unreasonably to suppose that one who takes a grant from the other should give the other a reciprocal right (ex. Pyer v Carter [though whether it’s right or wrong comes for discussion] found a grantor of a right to drain water onto neighbour’s land had an easement to carry that same water back through the grantee’s land; Richards v Rose found a reciprocal easement of support).

NB therefore, for the rule to apply, the quasi-easement must:

1) Be enjoyed at the time of sale or lease
2) Be continuous and apparent and/or be reasonably necessary for the enjoyment of the property [what these entail and their interrelationship is difficult]

Question 54

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Wheeler v JJ Saunders [1995]

Facts/held

Answer 54

A house and adjacent farm were in common ownership; there were two routes of access to the house, one of which through the access strip. C bought the house, and the farm was let to D, who obstructed the path to the house via the access strip. In the conveyance to C, there was a covenant that the buyer would erect and maintain a boundary fence spanning the whole of the boundary between their land and land retained by the vendors.
Held (CoA): the grant of an easement cannot be implied into the conveyance because the access strip was not necessary to the reasonable enjoyment of the house, thus Wheeldon v Burrows does not apply (finding of trial judge reversed).

Question 55

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Wheeldon v Burrows (1879)

Staughton LJ & Peter Gibson LJ

Answer 55

Staughton LJ: the class of easements implied in favour of a grantee is wider than easements pf necessity, but how much? Would follow Thesiger’s passage (easements . . . necessary to the reasonable enjoyment of the property granted, andwhich have been and are at the time of the grant usedby the owners of the entirety for the benefit of the part granted’).
In this case it wasn’t, because the other entrance would do just as well; It’s 4 inches narrower than the claimed entrance, but that was not critical. The gate there was usually shut anyway, which shows that it wasn’t the main entrance and probably only used on rare occasions.
An alternate route to the same conclusion is that the covenant in the conveyance excludes any implied grant, being inconsistent with it.
Peter Gibson LJ: there’s some doubt as to whether the second and third requirements (continuous and apparent/necessary for the reasonable enjoyment of the property granted) in Thesiger LJ’s judgment were alternatives, but IJO they are synonymous with each other (‘or in other words’).
Necessary for the reasonable enjoyment is not the same as a test of necessity, instead it has a “special meaning” of necessity – “conduces to the reasonable enjoyment of the property” [emphasis mine].

Question 56

Tee, Metamorphoses and section 62 of the LPA 1925 [1998] Conv 115

Intro

Answer 56

Article examines the effect of s62 to look for any logic or clarity.
S62 can transform personal into proprietary rights (ex. licenses into legal easements), and yet, despite its startling effects, its application is uncertain (ex. it can apply when permission is granted on each occasion of use (Ward v Kirkland) but not when it’s granted to use a way intermittently (Green v Ashco).

Question 57

Tee, Metamorphoses and section 62 of the LPA 1925 [1998] Conv 115

I – Historical Background

Answer 57

19C conveyances usually included “general words” so that (while legal easements would automatically pass) equitable easements and easements that were extinguished through unity of possession would pass. In Langley v Hammond, Kelly CB said that extensive general words were incapable of creating a right of way that had never existed before, but could revive rights that formerly existed, and suspended (not extinguished) by unity of possession.
But it might be more extensive:
1) Branwell B expressed reservations about Kelly CB’s judgment, and was not prepared to say that a right of way could never pass under wide general words even though there had always been unity of ownership or possession.
2) In Watts v Kelson, Lord Romilly MR followed Langley v Hammond but was reversed on appeal, distinguished from Langley as involving an easement of necessity or continuing easement, such that despite the absence of prior diversity of occupation, the general words were effective to grant an easement
3) In Kay v Oxley, there was a cottage and adjoining farm in D’s joint ownership; a tenant of the cottage wanted to build a hay loft, D agreed and gave him permission to use the farm’s private road for the purpose. C then purchased the freehold of the cottage with the loft, and then D purported to revoke the license to use the private road. Blackburn J and Lush J held that general words in the conveyance passed the right to C, Lush J looked for whether the words manifested an intention to pass the mode of access as a right (yes), while Blackburn J refused to agree with the argument that general words could not create a new right [today this would probably have been an easement by estoppel].
“the mere fact that the way did not exist as a right of way before unity of possession, and was only enjoyed as a way before unity of possession, will not prevent the court putting such a construction upon general words which, prima facie, might apply to rights and not to ways enjoyed de facto only,as is to be gathered from the true intention of the parties.” (Bowen LJ)
Thus, courts are sometimes prepared to construe general words as granting new rights if the surrounding circumstances are such that this must have represented the true intention of the parties.

Question 58

Tee, Metamorphoses and section 62 of the LPA 1925 [1998] Conv 115

II – S62 LPA 1925

Answer 58

A reenactment of s6 Conveyancing Act 1881, which was designed merely to shorten and simplify conveyances by deeming general words to be automatically included unless a contrary intention were expressed; it didn’t intend to alter the effect of general words but only to eliminate the need for their recitation.
In s62:
1) “Appertaining” refers to easements which are already annexed to the estate granted, not future rights (Nickerson v Barraclough), but it has a secondary meaning of “usually occupied” and “enjoyed with”, though despite this it is not capable of creating new rights of a type unknown to the law (ex. Green v Ashco) but can only grant easements recognized by the law.
2) Suggested that it only applies in cases of prior diversity of ownership (Sovmots v Secretary of State for the Environment)

Question 59

Tee, Metamorphoses and section 62 of the LPA 1925 [1998] Conv 115

III – International Tea Stores v Hobbs

Answer 59

Farwell J’s judgment was very influential. In Dewsbury v Davies Fox LJ said “it seems rather an odd result that a section whose purpose was to shorten conveyances should have the effect of turning what was, as here, a permissive and precarious right into an irrevocable easement [but that] is evidently the effect of the authorities”.
Facts: a blacksmith owned a forge (he occupied) and adjacent shop (he let to successive tenants, culminating in C). He gave C permission to use the forge’s private roadway, then C purchased the freehold of the shop. The conveyance had no general words (nor mention of the right of way), but no express intention to exclude the operation of the Conveyancing Act. C claimed a right of way.
Farwell J’s reasoning:
(a) the lease had not given the plaintiff the right to cross the roadway;
(b) the plaintiff had crossed the roadway;
(c) therefore, the plaintiff must have crossed the roadway either by licence or without licence;
(d) either way, the tenant had in fact enjoyed a right of way
(e) the right of way was enjoyed at the date of the conveyance;
(f) therefore, the right of way passed with the conveyance to the plaintiff under section 6 of the Conveyancing Act 1881.
But this is fallacious: if he had a licence, then it was a bare licence (without consideration), so right not to be sued in trespass until the permission is revoked. If he had no licence (which doesn’t matter to Farwell J), then he could at any time be sued in trespass – proposition (d) is thus erroneous, as he had no right of way.
The point of intention (crucial in Oxley) was lost here – the statute can therefore transform a bare licence into a legal easement regardless of the parties’ intention.

Question 60

Tee, Metamorphoses and section 62 of the LPA 1925 [1998] Conv 115

IV – Wright v Macadam

Answer 60

CoA followed International Tea Stores. Jenkins LJ [MI CONTRAST ACTUAL JUDGMENT: I think Jenkins LJ is actually using the “right” in the same sense in both propositions; he says expressly that the ‘right’ must merely be capable of being granted at law and that it need not in fact have been granted, only de facto enjoyed, even by permission only]
(a) section 62 is not confined to legally enforceable rights;
(b) the right, in order to pass, need not be one to which the owner or occupier has a permanent title;
(c)International Tea Storesis authority for the proposition that a right enjoyed merely by permission is enough;
(d) the right needs to be known to the law;
(e) the right will not pass if in the circumstances of the case there was no expectation that the enjoyment of the right could be other than temporary [thus role of intention is reduced: only if there was no expectation that the licence would be other than temporary is intention relevant at all. Thus, from the 19C cases that said s62 could create new rights if the parties intention was to do so, the CoA was not saying that general words would create new rights unless shown that the licence was intended to be temporary (=short-lived)]
(f) the right [in its full meaning] in question is recognisable as an easement; no time limit was set up as to the use of the coal shed, so it was not in the contemplation of the parties that the enjoyment of the right [‘right’ not to be sued] should be purely temporary; therefore, the right to use the coal shed comes within the meaning of section 62 and passed by virtue of the second lease;
(i) the tenant has an easement to store coal in the coal shed [non sequitur]
“Right” is again being used in two different meanings; a right is enforceable (even if only in equity), whereas the tenant here only had the negative ‘right’ not to be sued in trespass before the permission was revoked, whereas an easement is a right enforceable against everyone.
Doubts about the justice of this approach: Tucker LJ in Wright itself, shared by Cross J in Green v Ashco.

Question 61

Tee, Metamorphoses and section 62 of the LPA 1925 [1998] Conv 115

V – A new approach

Answer 61

Law Comm 1971 recommenced a statutory amendment of s62 to prevent a recurrence of Wright cases: upon a division of land, the purchaser would have:
(a) any facilities which were previously available to the occupier of that part of the land and which in all the circumstances it is reasonable to contemplate as continuing; and
(b) any new facilities which are either necessary to the proper enjoyment of that part at the time of the transaction or which in all the circumstances it is reasonable to contemplate as having been intended by the parties to be imposed upon completion of the transaction.
This was intended to cover easements created by operation of law under s62 and arising by implication.
But as reforming the section isn’t a political priority, perhaps higher courts can reconsider International Tea Stores. It can do so by:
1) interpreting “ways … privileges … rights, and advantages” at face value; a way enjoyed by licence passes, but continues to be a licence revocable after the conveyance; and using Wheeldon v Burrows for new easements. But this is a radical reversal of precedent.
2) revert to position before International Tea Stores and give due weight to parties’ intention

Question 62

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Wright v Macadam [1949]

Answer 62

A landlord allowed a tenant to store her coal in his shed. Two years later, he granted her a new tenancy without mentioning the coal shed; the tenant continued to use it for four years, then (successfully) claimed that she had acquired an easement under s62.
Jenkins LJ:
Proposition 1: “a right in fact enjoyed with property will pass on a conveyance of that property by virtue of the grant to be read into it under s62, even though down to the date of the conveyance the right was exercised by permission only, and therefore was in that sense precarious”.
Proposition 2: the right must be one known to the law (Burrows v Lang). It matters only that the right is capable of being granted at law; it then doesn’t matter if it’s exercised by permission only (International Tea Stores).
Proposition 3: “a further exception [emphasis mine: contrast Tee’s criticism; saying that an exception is that it won’t be an easement unless it’s not intended to be temporary is not the same as saying that it will be an easement unless it was intended as temporary] has been recognized in cases in which there could in the circumstances of the case have been no expectation that the enjoyment of the right could be other than temporary”.

Question 63

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Long v Gowlett [1923]

Answer 63

Re right of owners of Lot 1 to repair the bank of Lot 2 and cut the weeds there, after common ownership and contemporaneous sale to two separate owners.
Held: here land in common ownership is sold contemporaneously in lots to two purchasers a right for one purchaser to go on the land of the other to clear a millstream and repair its banks (there being no visible path or other sign of such user) will not pass by virtue of the words implied in the conveyance to him unders6 Conveyancing Act, unless there has been before the severance of ownership a de facto enjoyment of the right, however precarious, by the occupier of that part of the land altogether apart from the ownership or occupation of the other part.

Question 64

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Long v Gowlett [1923]
Sargant J:

Answer 64

During the common ownership and occupation, and therefore at the date of the conveyance, was there a “privilege, easement, right or advantage” of the kind now claimed, that can be said to have been “demised, occupied or enjoyed”? No – the owners did in fact repair the bank and cut the weeds, but there is nothing to indicate that the acts done were otherwise than in the course of the ownership and occupation, or that it was done in connection with Lot 1.
It would be contrary to principle to hold that a conveyance of one lot would carry a right to pass over another in the same way as the common owner had been accustomed to pass. There must be “something done on Blackacre not due to or comprehended within the general rights of an occupying owner of Blackacre, but of such a nature that it is attributable to a privilege, easement, right or advantage, however precarious, which arises out of the ownership or occupation of Whiteacre, altogether apart from the ownership or occupation of Blackacre”, and where there is no prior diversity of ownership, hard to comprehend why this might be the case.
“For this purpose it would seem that there must be some diversity of ownership or occupation of the two closes sufficient to refer the act or acts relied on not to mere occupying ownership, but to some advantage or privilege (however far short of a legal right) attaching to the owner or occupier of Whiteacre as such and de facto exercised over Blackacre.”
An exception is Broomfield v Williams, but a right to light is plainly visible to anyone buying a house, and is extremely similar to a continuous and apparent easement.

NB Lord Wilberforce in Sovmots: “Equally, section 62 does not fit this case [as] when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist: see Long v. Gowlett [1923] 2 Ch. 177, 189, 198, in my opinion a correct decision.
A separation of ownership, in a case like the present, will arise on conveyance of one of the parts (e.g. the maisonettes), but this separation cannot be projected back to the stage of the compulsory purchase order so as, by anticipation to bring into existence rights not existing in fact.”
And Lord Edmund-Davies: “But the section cannot operate unless there has been some diversity of ownership or occupation of the quasi-dominant and quasi-servient tenements prior to the conveyance: seeLong v. Gowlett [1923] 2 Ch. 177.” And exception is in a claim to light (Broomfield v Williams) but this easement is an exception to many rules.

Question 65

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Borman v Griffith [1930]

Answer 65

Owner leased land to C for 7 years, that didn’t expressly reserve any right of way to him, then leased neighbouring land to D, who blocked the way that C habitually used.

Maugham J: a contract for a lease exceeding three years does not come within the meaning of the phrase “assurance of property or of an interest therein” (s205 LPA 1925) such that the the general words (s62) are not included in the agreement.
But, in granting specific performance of such a contract, the effect is the same with regards to rights of way as if there had been, before the coming in effect of the Conveyancing Act, a conveyance with no mention of rights of way, such that the doctrine that a grantor may not derogate from his grant (and thus Wheeldon v Burrows) applies.

Principle: where “two properties belonging to a single owner and about to be granted are separated by a common road, or where a plainly visible road exists over the one for the apparent use of the other, and that road is necessary for the reasonable enjoyment of the property, a right to use the road will pass with the quasi-dominant tenement, unless by the terms of the contract that right is excluded”.

The quasi-easement is not continuous, but a grantor of property, in circumstances where an obvious (=visible and made) road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have intended to grant a right to use it.

Question 66

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Goldberg v Edwards [1950]

Facts/held

Answer 66

A house with an annexe at the rear connected with it by a covered passageway (but accessible via another outside entrance). The last tenant only used the outside entrance. D then let it to C, allowing them a personal right of access through the house. But the use was conceded not to be within s62 LPA 1925.Then, the landlord demised the annexe “with appurtenances” to C. Then, D let the house to D2, who refused C access. C sought an injunction.

Held: a right of way through the house was not necessary for the reasonable or convenient enjoyment of the annexe, and a claim based on implied grant, apart from s62 LPA 1925, must fail. But the personal right to use the front door was enjoyed qua lessees and could be included in a lease so could come within s62, and it was a right appertaining to the demised premises within the section. Thus, it was enforceable by the tenants.

Question 67

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Goldberg v Edwards [1950]
Evershed MR

Answer 67

Evershed MR:
On argument based on implied grant: in Gale on Easements, it’s necessary for the “reasonable or convenient” enjoyment whereas in Borman v Griffith it’s “reasonable” enjoyment, but IJO one or both of those passages is correct.
But it doesn’t follow that a way through the front door of another’s premises is prima facie necessary for the reasonable or convenient enjoyment of the premises behind. It would take “strong evidence” to show that it is so. In this case, another tenant enjoyed it reasonable and conveniently without needing to use the door. Thus reject implied grant.
On argument based on s62: not saying that personal rights would necessarily in every case be covered by s62, but the right here, though limited to the lessees, was given qua lessees, and thus is covered by the principle in Wright v Macadam and section 62.

Question 68

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Green v Ashco [1966]

Facts/held

Answer 68

C, tenant of a shop took a second renewal of the original lease on the same terms except for rent, then lessors conveyed the freehold reversion to D together with neighbouring property, including a passageway from the street to the shop and eventually to garages let to C. C then claimed that he had a right of way down the passageway to the shop, having used it ever since he was a tenant as the only means of access to the shop, under s62 LPA 1925. D claimed that a clause in the lease expressed a contrary intention, therefore, s62 was inapplicable.
Held: on a true construction of the clause, it was confined to easements of light and air and didn’t apply in this case. But it could not have been subject of a legal grant, as C’s user of the way was always subject to the exigencies of the original lessors and the other tenants of the garages, and thus s62 could not operate.
Per Cross J: in deciding whether the user was such that section 62 would operate, it was not right to look solely at the user at the moment of the grant of the existing lease, but the court ought to look at the facts over a reasonable period of time before the date of the grant in question.

Question 69

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Green v Ashco [1966]
Cross j

Answer 69

Cross J:
On construction of the clause: the clause (“That the landlord shall at all times have power … to deal as the landlord may think fit with any of the lands and premises adjoining, contiguous or opposite or near to the demised premises and to erect [there] … any buildings whatsoever whether such buildings shall or shall not affect or diminish the light or air … enjoyed by the lessee”) only applies to light or air – the start is very wide, but it must be construed as a whole.
On s62: in Ward v Kirkland it was held that it makes no difference whether the express consent was given to endure for a period of time or was asked for and given every time it was exercised. But in Wright v Macadam Jenkins LJ refers to two sets of circumstances where s62 cannot operate:
1) it can only operate where the right could have been the subject of a grant of a legal right (landlord’s consent to use the path was always subject to the exigencies of their own business and the requirements of the tenants of their garages; C could only use the path if it was not inconvenient to the landlord. Yet, a right to use a right of way “for such periods as the servient owner may permit one to use it” is not a legal right.
2) it won’t operate if at the time of the conveyance it was or should have been apparent to the grantee or lessee that the enjoyment which he claims to have been converted into a right by the section was only temporary (no application)

Question 70

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Platt v Crouch [2003]

Answer 70

C purchased a hotel business next to a river with an island, where the previous owner of the hotel enjoyed fishing and mooring rights. C claimed that the rights passed in virtue of s62 LPA 1925 or Wheeldon v Burrows.
Peter Gibson LJ: if there was an agreement or understanding that the rights were to come to an end on hotel sale and thus be excluded from s62 even though the contract and transfer were silent as to such an exclusion, then this would be a relevant circumstance giving rise to an expectation that it would not be easements. But there is no evidence of such an agreement or understanding.
The evidence is clear that the rights did appertain to and were reputed to appertain to and were enjoyed with the hotel, being part of the hotel business and advertised as such and enjoyed by hotel guests. The rights were continuous and apparent, so that absence of prior diversity of occupation is irrelevant.
Longmore LJ: the rights claimed by the claimants were “continuous” and “apparent” rights which passed under the conveyance to them pursuant tos62. It doesn’t fall under the exception of expectation that right would be temporary (an example of this is right to light where it is known by the parties that there is to be a building scheme under which the land is to be developed).

Question 71

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Kent v Kavanagh [2007]

Answer 71

Two houses were built with a path between them leading to the back gardens of both, the boundary being the midline of the path. House 56 was sold first, without an express right of way included under LRA 1857, then House 58 was sold to different buyers. Both sales were made under the Leasehold Reform Act 1967 (to give effect to the tenants’ right to enfranchisement).

Question 72

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Kent v Kavanagh [2007]

Chadwick LJ:

Answer 72

The judge said that it didn’t apply because there was no evidence that the pathway was in use at the time of the transfer. The parties didn’t plead necessity, correctly, because the garden could be accessed through the garage. But the judge upheld the claim based on non derogation from grant (Wheeldon v Burrows): the pathway was obviously a means of access, and it was necessary for the reasonable enjoyment of 56 to have a right of way over it to get to the garden. It’s no answer to say that access could be gained through the garage (// Goldberg v Edwards).

There’s tension in that the judge said it couldn’t be assumed that the path was actually being used, and then that it was obviously a means of access and necessary for the reasonable enjoyment of 56 (if this is the case, why can’t we assume it was being used? Otherwise, how can the Wheeldon v Burrows requirement that the quasi-easement be “at the time of the grant used by the owners of the entirety for the benefit of the part granted” be satisfied?).

Argument 1 – Wheeldon v Burrows don’t apply in leases executed to give effect to the obligation imposed by the 1967 Act: the principle is based on the proposition that one does not intend to derogate from his grant, which cannot be imputed to a landlord obliged to sell (involuntary transfer). Thus, in Sovmots, Lord Wilberforce (+3 others) rejected that Wheeldon would apply to conveyances pursuant to compulsory purchase orders. But compulsory purchase is not the same as right to enfranchisement; in the latter, the parties are bound as they are by an ordinary contract.

But does it apply in the present case?

Thisiger LJ made two propositions:
1) Wheeldon v Burrows rule
2) if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. This is subject to exceptions, ex. reciprocal rights and reservations are implied into leases granted by a common landlord in pursuance of a building scheme (Cory v Davies)
But then to what extent do the propositions apply where at the time of conveyance, the land conveyed and retained were in common ownership, but not common occupation.

As to which easements over the retained land pass with the conveyance of the freehold, s62 is more satisfactory than Wheeldon, as it’s artificial to say that the common landlord was himself using the rights over the retained land which he tenant enjoys under the lease. It’s true that (as in Sovmots per Lord Wilberforce) there’s no sensible concept of rights over one part of land for the benefit of another when the two are in common ownership and occupation, but where there is a separation of occupation there is no conceptual difficulty [Lewison LJ agreeing, and adding that it’s enough for a right to be part of the bundle of rights comprised in the lease, even if it’s not exercised. Only limit is that s62 cannot give the tenant any better title than the landlord could have expressly conveyed].

S62 cannot operate to reserve rights out of land conveyed for the benefit of the retained land. Thesiger LJ’s second proposition applies.

Question 73

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Wood v Waddington [2015]

Answer 73

C bought part of land with the benefit of all “liberties, privileges and advantages continuously enjoyed by it” (clause 12.3.3); the remaining land was then sold to D. C claimed right to use bridleways across D’s land for horse riding purposes.

Held (CoA: Lewison LJ):

On construction of the clause: the usual meaning of “continuous” is uninterrupted or unbroken; the right claimed was the right to use the ways, not the ways themselves. Thus, the use had to be continuous. “Continuous” in clause 12.3.3 should be interpreted with its usual meaning, and since there is a category of continuous easements, the clause should be confined to this category, and the right claimed is not within it.

On s62: it only applies to advantages “enjoyed with” the land at the time of conveyance, but this time includes a reasonable period before the conveyance. In this period, there was no diversity of occupation, and therefore, it is necessary to establish that the exercise of the relevant rights had been continuous and apparent in the meaning of Wheeldon v Burrows. A quasi-easement that falls within easements “enjoyed with” the land for the purpose of s62 need not be necessary for the reasonable enjoyment of the land; thus, s62 is broader than Wheeldon v Burrows.

• “in cases where there has been no diversity of occupation, all that is necessary to establish is that the exercise of the relevant rights has been continuous and apparent in the sense developed for the purposes of the rule inWheeldon v Burrows”

In this case, there were sufficient signs (path clearly visible etc.) to conclude that the route was continuous and apparent for the purpose of Wheeldon v Burrows, and it had been used once a month in the period preceding the transfer, and this is both apparent use and a regular pattern of use – thus it is sufficient to count as “enjoyment” for the purpose of s62 LPA.

But it only applies subject to contrary intention (s62(4)) and R argued that there was a contrary intention:

1) the rights of way to be granted were comprehensively identified
2) Obligations as to maintenance of all such ways were expressed
3) the clause covered the same ground as s62 but were confined to continuous rights which rights of way were not

But these fail because the grant of a limited right would not exclude the operation of s62 to confer a greater right than that contained in the conveyance.

Thus C was entitled to the rights by virtue of s62 LPA; application of Wheeldon v Burrows does not arise.

Question 74

Gardner, The grant of an easement under the LPA 1925 s62, (2016) 132 LQR 192 (comment on Wood v Waddington)

Intro

Answer 74

S62 will create new easements in two circumstances according to Wood v Waddington:
1) Diversity of occupation cases with a suitable license
2) Unity of occupation cases with a previously suitable usage of the two pieces of land, and this usage being “continuous and apparent” at the time of the conveyance
That s62 applies to unity of occupation cases is consistent with the wording of the section, but earlier authority left it insecure (esp. Sovmots v Secretary of State for the Environment, followed by Kent v Kavanagh). But another group of decisions had not followed the statements (Platt v Crouch), now joined by the present decision

Question 75

Gardner, The grant of an easement under the LPA 1925 s62, (2016) 132 LQR 192 (comment on Wood v Waddington)

Why only in unity of occupation cases (and not diversity cases) there must be a “continuous and apparent” use, for the purpose of the Wheeldon v Burrows rule?

Answer 75

Lewison LJ doesn’t say why, but Morgan J (first instance) seemed to consider that this requirement is an indicator that the usage was “enjoyed with” the land and not merely a personal practice of the dominant owner. Looked at this way, it’s not a ‘requirement’; the key is that the usage be ‘enjoyed with’ the land, determined in whichever way.
This approach would have been consistent with the wording of s62 (which makes no reference to a “continuous and apparent” test), and would have the advantage of unifying the approach in diversity and unity of occupation cases – both must be enjoyed with the land, satisfied by reference to any aspect of the facts.

Question 76

Gardner, The grant of an easement under the LPA 1925 s62, (2016) 132 LQR 192 (comment on Wood v Waddington)

What is the nature of this usage?

Answer 76

This usage need not necessarily be literally continuous (i.e. like negative easements like a right to light, though a right of way generally isn’t); what is required is that “there is no end point, built into the earlier usage, beyond which it is not to continue” (ex. a series of one-off usages would not suffice like in Green v Ashco). More positively, there must be “some persistent, not less than reasonably discoverable sign of the usage; such as, in the case of a right of way, a road or at least a track”.

Question 77

Gardner, The grant of an easement under the LPA 1925 s62, (2016) 132 LQR 192 (comment on Wood v Waddington)

The requirement of a suitable usage

Answer 77

the ‘servient tenement’ must have been used for the benefit of the ‘dominant tenement’ in a way capable of becoming an easement. But there is some authority saying that some usages not substantively qualified to become an easement will nonetheless be turned into easements by s62 (esp. Wright v Macadam).
Wood doesn’t address this rule explicitly as the issue doesn’t arise, but Morgan J says (not doubted by Lewison LJ) that the usage has to be ‘enjoyed with’ the land, while Wright v Macadam shows that it’s possible to have a right enjoyed on a personal basis by the land’s previous occupant turned into an easement. This will be especially difficult in unity of occupation cases.

Question 78

Gardner, The grant of an easement under the LPA 1925 s62, (2016) 132 LQR 192 (comment on Wood v Waddington)

Relationship between s62 and the rule in Wheeldon v Burrows

Answer 78

: the Wheeldon rule is that a new easement will be generated where two plots were owned by A, and there was a “continuous and apparent” quasi-easement in one plot’s favour over the other, and A confers and interest on B, and it is “necessary to the reasonable enjoyment” of B’s interest that it should come with the easement.
“Quasi-easement” is similar to the s62 requirement of previous usage, but perhaps it’s different because it must truly be “enjoyed with” the land, whereas s62 may apply even if it’s personal to the land’s prior occupant. In any case, s62 now leaves the rule in Wheeldon largely redundant, except in cases where there is no “conveyance” (as required in s62 but not Wheeldon) – ex. an estate contract or equitable lease (the transaction takes effect in equity only).

Question 79

Douglas, Reforming Implied Easements (2015) 131 LQR 251

Intro

Answer 79

Asks whether reform to the law of easements is necessary and critically assesses Law Comm’s suggestions.
Law Comm recommends that the current rules on implied easements be replaced with a statutory basis for implication: a grant or reservation will be implied into a deed wherever it is “necessary for the reasonable use of the land”.

Question 80

Douglas, Reforming Implied Easements (2015) 131 LQR 251

I – The Case for Reform

Answer 80

Types of implied easements:
1) Easements of necessity
2) Wheeldon v Burrows easements
3) Easements necessary for a common purpose
4) S62 easements (though this is better regarded as an aspect of express creation, because the words in s62 become part of the deed so no need to supplement it with additional terms)
Law Comm arguments for reform:
1) the existence of different tests makes the law governing implication unnecessarily complex, as there is “no obvious need for so many distinct methods of implication”. The complexity generates uncertainty as it is difficult to predict which test will be satisfied in a particular case.
2) the distinction between implied grants and implied reservations can produce arbitrary and unfair outcomes: for the successor in title, it’s a matter of chance whether it turns out that it’s an implied grant or reservation, but an implied grant will more readily be established than an implied reservation.
Law Comm’s approach: new statutory test for implication of a single question – would an easement be necessary for the reasonable use of the land? It would replace the common law’s multiple tests, and remove the distinction between grants and reservations.
Is reform really necessary?

Question 81

Douglas, Reforming Implied Easements (2015) 131 LQR 251

I – The Case for Reform

1) Implied easements are just an instance of implied term

Answer 81

Implying an easement into a deed is only one instance of implying terms into documents, of which the primary instance is implied terms in contract law (it’s been explicitly said that easements are implied on the same basis as implied terms in contracts: Lord Neuberger in Moncrieff v Jamieson). But there are implied terms in law (regardless of the parties’ intentions) and in fact (based on parties’ intentions): which one are easements? If they’re implied terms in law, then they have the purpose of achieving some policy goal (ex. that land does not become sterile upon grant. If in fact, then courts will only imply them if they give effect to the parties’ intention.

IAO it’s fact. In the law of contract, courts don’t inquire into the subjective intention of the grantor; the test that courts apply in implied easements is similar: “would a reasonable grantee conclude that the grantor had intended, but failed to express, the grant or reservation of an easement?” Further, when construing a deed, courts consider surrounding circumstances to ascertain the obvious intention of the parties. In easements, the tests criticized by the Law Comm are really just background factors, not strict tests.

1) Necessity easements (typically easements where the grantee can’t access their land without going over servient land): some say the basis of the implication is public policy (a court shouldn’t let land stagnate) in which case it would be a term implied in law, but the orthodox approach is that necessity is only relevant as evidence of the grantor’s intention (Nickerson v Barraclough, where a right of way was refused because the grantor had expressly excluded it, even though C’s land may be completely inaccessible without it). Thus, it’s fact.
2) Wheeldon v Burrows easements (quasi-easements): most modern cases treat the two limbs in Wheeldon to be evidence of intention and not strict tests (ex. Borman v Griffith: the grantor “must be taken prima facie to have intended to grant a right”. Wheeler v Saunders: Gibson LJ accepted that the two limbs of Wheeldon were met but refused the easement because of an express covenant to fence, saying that “what was plainly contemplated … was that … no stock from one property could pass to the other property”). Thus, it’s fact.
3) Common purpose easements (easements necessary to give effect to the common purpose of the transaction): this is the clearest example of an easement implied in facts [I agree, so didn’t read. Kind of obvious though.]

[MI: but is the grantor’s intention really all that matters? If a grantor intends to grant an easement, but doesn’t expressly do so and their successors in title know nothing about it, isn’t it unfair that they are nevertheless bound? Also, these examples only show cases where courts allowed a clearly contrary intention to defeat an easement after applying the legal test. This is very different from saying that courts will only imply the term if intention supports it; the courts actually will imply the term if the test is satisfied, unless there is a contrary intention.]

Question 82

Douglas, Reforming Implied Easements (2015) 131 LQR 251

I – The Case for Reform

2) Does the law actually apply a more restrictive tests for implied reservations?

Answer 82

? It’s commonly argued that yes because Wheeldon doesn’t apply to implied reservations, but a number of cases have stated that the test for both grants and reservations is intention (ex. Lord Evershed, Re Webb’s Lease: “… the implication of a reservation is justified in order to give effect to what the parties must be presumed between them to have intended …”)
But then why doesn’t Wheeldon apply? Because the weight that is attached to evidence is lower, in that the grantor is seen as being in control of the conveyance and it’s up to him to consent to what rights are granted to the grantee. [MI: A better argument could be that the grantor has been the one using the land and familiar with the land, so that the grantee, often buyer, is not]. Thus, the threshold is higher: it must be absolutely necessary (necessity easements apply to both grants and reservations) and not merely “reasonably necessary”.

Question 83

Douglas, Reforming Implied Easements (2015) 131 LQR 251

I – The Case for Reform

Conclusion

Answer 83

the common law is very different from the position outlined by the Law Comm.
We don’t have separate tests but evidence of intention.
- Judges don’t say an easement is implied because it is necessary, but that the necessity shows that it can be inferred that the grantor intended to create an easement.
- Courts have refused easements that satisfy one of the tests, and implied easements that don’t (ex. Rudd v Bowles, where an intention to grant an easement was inferred from a map displayed upon sale that marked an access road intended to be built).
Thus, the law is not overly complex. The complexity doesn’t result from the law but from evidential difficulties.
We also don’t have separate tests for implied grants and reservations (a single test of intention applies to both).

Question 84

Douglas, Reforming Implied Easements (2015) 131 LQR 251

II – Evaluating the Reform Proposal

Answer 84

If the test is really intention, then the Law Comm’s proposal (to ask whether the easement is necessary) will be difficult. There are also issues:

1) What will be abolished to institute the test? You can’t abolish the fact that grantors sometimes intend to grant easements and fail to express it, though it would be more difficult to prove. Maybe a parole evidence rule would be necessary, so that the court would not be permitted to consider anything except the express terms to ascertain intention. This would render most of current law (which looks to circumstances) redundant. Another possibility is a formality requirement (ex. compulsory registration of easements), but Law Comm declined. The possibility that the Law Comm appears to have adopted is that “reasonable necessity” is no longer evidence of intention, but the basis for implication itself.
2) What would be the justification for the reform? A fundamental principle is that a court has no power to improve a transaction by inserting unintended terms, but this is exactly what the proposed test does!

Question 85

B. CREATION

3. Other modes of acquisition

(II) Wheeldon v Burrows/Section 62

Clarke v Barnes [1929]

Answer 85

Held: the right to use the right of way claimed was reputed to be enjoyed with the land, but as neither party intended that it should pass on the conveyance of the land (evidenced by a conversation between the parties to this effect, and the absence of intention in the contract between the parties, C was entitled to have the conveyance rectified by the insertion of proper words limiting the implication of any right of way that might arise under LPA 1925 s62.

Question 86

(iii) Estoppel/benefit and burden

ER Ives v High [1967] 2 QB 379

Facts/held

Answer 86

D owned a plot of land on which he was building a house, and his neighbor was building a block of flats, D noticed that the foundations of the flats trespassed onto his land, so agreed to the trespass in return of the neighbor granting him a right of way over his land. Thus, D built his house in such a way that the only access by car was via the neighbour’s yard, and when the neighbor sold his flats the buyers allowed D to use the way for fourteen years, and D built his garage in reliance on the fact that the right was valid (though it was never registered as a land charge and the conveyance to the buyers never mentioned it). Then the flats were sold to C with the conveyance mentioning the right of way. C sought an injunction to prevent D from using it on the ground that it was void under s4(6) Land Charges Act 1972 as it wasn’t registered.
Held: the injunction was refused because
1) Mutual benefit and burden (C couldn’t take advantage of the benefit of the trespass without being subject to the right of way
2) Estoppel (an equity arose from the expense incurred in building the garage with the first buyers’ acquiescence, which was binding on C because they had express notice of the right of way and it would be inequitable for them to deny its existence)

Question 87

(iii) Estoppel/benefit and burden

ER Ives v High [1967] 2 QB 379

Lord Denning:

Answer 87

On mutual benefit and burden: those who make an agreement to secure continuing rights and benefits for each of them in or over the land of the other, cannot take the benefit of the agreement and not the burden; this applies also to successors who take the continuing benefit.
On equity arising out of acquiescence: the first buyers stood by while D built his garage, creating in D’s mind a reasonable expectation that his access over the yard would not be disturbed. This gives rise to an equity arising out of acquiescence, binding on them and successors, and only capable of being defeated if it would be inequitable.
Was the right a land charge? If it was, then it’s registrable and not binding on purchasers unless registered. But the right to cross the yard was not one as could ever have been created or conveyed at law; it subsisted only in equity and therefore still subsists in equity without being registered.

Question 88

C. THIRD PARTIES

Law of Property 1925 Act s 1

Answer 88

1(2)The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are—
(a)An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute;

Question 89

C. THIRD PARTIES

Land Registration Act 2002 s 27(2)(d), Sch 3 para 3

Answer 89

In the case of a registered estate, the following are the dispositions which are required to be completed by registration— (d)the express grant or reservation of an interest of a kind falling within section 1(2)(a) of the Law of Property Act 1925 (c. 20), other than one which is capable of being registered
Easements and profits a prendre
3(1)A legal easement or profit a prendre, except for an easement, or a profit a prendre which is not registered under Part 1 of the Commons Act 2006, which at the time of the disposition—
(a)is not within the actual knowledge of the person to whom the disposition is made, and
(b)would not have been obvious on a reasonably careful inspection of the land over which the easement or profit is exercisable.
(2)The exception in sub-paragraph (1) does not apply if the person entitled to the easement or profit proves that it has been exercised in the period of one year ending with the day of the disposition.

Question 90

Regency Villas

Facts/held

Answer 90

17th century property redeveloped in 1970s as a country club with sporting facilities both indoors and outdoors. Neighbouring land is 2nd of 3 timeshare developments designed to permit use of the country club. Rights given to occupants of Regency Villas development in 1981 intended to be easement to use neighbouring leisure centre. Brooms Park ultimately sought Re V to pay contributions and argued on appeal to SC that there was no easement:

1. right did not accomodate the DT
2. Exercise by RV timeshare owners would amount to ouster
3. enjoyment of the rights by RV timeshare owners depended upon substantial expenditure by As in managing and maintaining facilities

(on cross appeal Q was whether easement valid for facilities made after the easement or only those that existed at the time)

Held:

1. Re Ellenborough park was rightly decided
2. Recreation/sporting facilities could (and did) amount to an easement (though NB qualified by nature of land and kind of recreational activity)
   Lord Carnwath dissented on basis of (3) thought it was onerous.

Question 91

Regency Villas

re construction of the grant

Answer 91

although reference was made to a number of different facilities, the facilities grant was in substance ‘the grant of a single comprehensive right to use a complex of facilities’ i.e. not limited to faciltiies of 1981.

absence of express words of futurity ‘is amply compensated by the inherent nature of the subject matter’

there was no express provision that grantee/successors would contribute to cost of operating the facilities (purely personal covenant)

Question 92

Regency Villas

Lord Briggs

re construction of the grant

Answer 92

although reference was made to a number of different facilities, the facilities grant was in substance ‘the grant of a single comprehensive right to use a complex of facilities’ i.e. not limited to faciltiies of 1981.

absence of express words of futurity ‘is amply compensated by the inherent nature of the subject matter’

there was no express provision that grantee/successors would contribute to cost of operating the facilities (purely personal covenant)

Question 93

Regency Villas

Lord Briggs on accommodation

Answer 93

1. sets out Re Ellenborough
2. Bailey v Stephens: ‘it must… have some natural connection with the state as being for its benefit’

Law Com 2011: ‘reasonably necessary for the better enjoyment of that land’

Key points:

1. not enough for E to be annexed if nothing to do with normal use nor sufficient that it adds value to the land i.e. access lords cricket ground has nothing to do with ordinary use of domestic home
2. ‘normal use’ may be residential or business use. it may also be relevant for contemplated use (Moncrieff v Jamieson lord Neuberger)
3. not an objection to qualification as easement that it involves some chattels (in this case equipment)
4. Q of accommodation is a factual one

Question 94

Regency Villas

Lord Briggs on recreational rights

Answer 94

Issue = recreational rights could be regarded as ends in themselves rather than rendering the land more enjoyable;

He notes the Roman dismissal of recreational rights to wonder over someone’s land but considers Re Ellenborough Park as ‘dispositive’ for the fact that ‘it is not fatal to the recognition of a right as an easement that it is granted for recreational (including sporting) use….

provided a recreational use is of utility of DT, it does not matter that their enjoyment may be primary reason why persons are attracted to rights

Question 95

Regency Villas

Lord Briggs the nature of 4th category in Re Ellenborough

Answer 95

4th category of Re Ellenborough is a ‘repository for a series of miscellaneous requirements which have been held to be essential characteristics of an easement’

(i) must be defined in sufficiently clear terms
(ii) not purely precarious so liable to be taken away at the whim of ST
(iii) right is not so extensive so as to oust ST from enjoyment/control
(iv) right should not impose on ST obligation to expend money or do anything beyond mere passivity

Question 96

Regency Villas

Lord Briggs on why recreation can potentially be a valid easement

Answer 96

‘the advantages to be gained from recreation and sporting activities are now so universally regarded as bring of real utility and benefit to human beings that the pejorative ‘mere right of recreation and amusement, possessing no quality or benefit’ has become a contradiction in terms’

Question 97

Regency Villas

Lord Briggs on mere passivity requirement

Answer 97

Cites Jones v Price: that an easement must create ‘no more than sufferance’ on ST

Notes an example of a bridge in Jones v Pritchard, and says that in the modern day it is inconceivable that the maintenance and repair and replacement of a bridge would be undertaken by anyone other than the owner of the ST

Crucially, there must be no OBLIGATION!

He notes that Lord Scott in Moncrieff said that a swimming pool would not be a valid easement since it would require upkeep (and rightly so i.e. chlorine, PH levels, ensuring the tiles are safe etc.)

But says that ‘some meaningful use’ could be made of the golf course and swimming pool, even if ST discontinued maintenance.

He contrasts swimming pool and laws with miniature steam railway, a covered ski slope with ‘artificial snow, or adventure rides in a theme park’ which would fall on the wrong side of the line re upkeep.

Question 98

Arguments for extension of Re Ellenborough?

Answer 98

1. common law should so far as possible accommodate itself to new types of property ownership and new ways of enjoying the use of the land. The timeshare development, which is quintessentially for holiday and recreational use, is just a new type’
2. recreational easements have been widely recognised in common law world (Canada, Victoria SC)

Question 99

Argument against extension of re Ellenborough

Answer 99

1. timeshare structure frequently set up for limited no. of years and the rights conferred will likely burden ST for many years after the leisure complex in question outlived its natural life.

At present, no statutory basis for modification or discharge of easements (As exists with restrictive covenants) but Law Com 2011 proposes that there should be!

2. use of easements for conveyancing vehicle for conferring recreational rights for time share owner upon adjacent land hardly ideal! points to leasehold structure of first timeshare owners

Question 100

Regency Villas

Lord Carnwath

Answer 100

Quotes Lord Scott in Moncrieff where positive action i.e. to maintain a driveway in repair cannot be a servitude

On the facts, ‘plenty of evidence’ of the cost of maintenance and ‘no evidence’ as to what might realistically have been done by residents, collectively or in absence of such central control

In response to Lord Briggs on distinction between pool/tennis courts which could be used despite passiveness from ST and a theme park which could not safely be used, ‘in theory’ the DTs could form their own management and run the park!

Thus, he says that the distinction is artificial and opens the door to more rights he doesn’t think are properly easements

Question 101

A. Characteristics

Haddock v Churchston Golf Club Ltd

Facts/issues

Answer 101

acts
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?

Question 102

A. Characteristics

Haddock v Churchston Golf Club Ltd

Decision/points to consider

Answer 102

Decision

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.
As a result of point 1 above, it was unnecessary to consider whether it is legally possible to create a fencing easement by express grant.

Points to note/consider

The High Court decision was based on a trio of Court of Appeal decisions from the 1960s and 1970s which had held that the right to have a wall or fence kept in repair can constitute an easement, even though it offends the rule that an easement cannot impose a positive obligation on the owner of the servient land. In those cases, the alleged easements arose by prescription and there are no reported cases where such an easement has been upheld when expressly granted. As the Court of Appeal declined to express an opinion on the point, we still do not know if such an express grant is possible in appropriate circumstances.
Given the language of the 1972 conveyance, it is unsurprising that the High Court decision has been overturned on appeal. All property lawyers would read the relevant obligation as a positive covenant and conclude that the burden is not capable of directly binding successors in title to the original covenantor.

Question 103

Relationship between s. 62 and Wheeldon v Burrows

Answer 103

Both ways of impliedly creating an easement

s. 62 applies in 2 scenarios:
1. diversity of occupation (Wright v Macadam) + deed
2. quasi-easement that is continuous v apparent + deed

Wheeldon v Burrows

Cases of quasi-easement + continuous and apparent + reasonably necessary

therefore, wheeldon v burrows is harder to prove and only used when no deed

Question 104

Gardner & Mackenzie

Answer 104

the development of easements arose from the realisation that maximum utility of the land could be achieved by encouraging such collaboration. Equally, they note that ‘cross-pollination does harm as well as good’ because it erodes benefits to be had by encumbering it with obligations.

Question 105

Do easements need to be registered?

Answer 105

Although easements can be registered (per rule 73A of the Land Registration Rules 2003), it is not necessary to take effect in law. Further, it would take effect as an overriding interest (per para. 3 of Schedule 3 to the LRA 2002) because Nigel knows about its existence (having granted it), would be obvious upon a careful inspect of the land and we can infer from Nigel preventing her from ‘continue[ing] to use the gym’ and cutting the electricity, that she used it in the previous year