This is a transcript of a Stubb Legal CPD training course.
What follows is the full text of the script used to produce the audio recording. This script has been read verbatim, and lasts approximately one hour. Once you have listened to the audio recording, you should be able to answer the Multiple Choice Test at the end of this page.
STUBB LEGAL AUDIO RECORDING SCRIPT
Subscription Area: Property
Month of Production: February 2012
This audio recording will concentrate on Easements.
Quotations from judgments of the House of Lords are the copyright of the United Kingdom Parliament and from other judgments are Crown copyright. Quotations from statutory legislation are Crown copyright.
PART ONE - RIGHTS OF WAY
1 Llewellyn v Lorey {[2011] EWCA Civ 37}
CREATION OF AN EASEMENT
The normal method of creating an easement is by deed. However, a legal easement can arise in a number of other ways. For example, an easement can arise by reservation. Where access to a property retained is only available over the property granted, then the law implies an easement by reservation. Other circumstances where easements may be implied are where they are necessary for the enjoyment of land. Where a plot of land is fully land locked from a public highway, an easement for a right of way will likely be implied, through necessity. Likewise, where access to a property retained is only available by the destruction of a physical barrier, the continued existence of which is obviously contemplated by the parties, it is consistent with the doctrine of implied way of necessity to say that a way over the property granted is impliedly reserved as a matter of necessity {Sweet v Sommer, [2004] EWHC 1504 (Ch)}. The issue of whether a particular way is necessary is a question of fact to be determined by a consideration of all the surrounding circumstances.
LOST MODERN GRANT
Some practitioners may see the doctrine of lost modern grant as something for law students to puzzle over, but of little practical relevance. It is, however, a mistake to dismiss or overlook the doctrine, which can be a very practical remedy. The doctrine is a judge-made fiction which avoids the problems inherent in proving the acquisition of a right by common law or statutory prescription.
Common law prescription is based on a presumed grant made before 1189. The Prescription Act 1832 was passed to avoid the problem of proving user since 1189. However, the claimant must show a period of uninterrupted use for the 20 years immediately preceding the claim. With lost modern grant, the claimant must also show 20 years use, but the period need not immediately precede the claim. It can have expired at an earlier time. The doctrine of lost modern grant is useful in situations where the servient owner has recently taken steps to defeat a claim.
Enjoyment of the right must still have the necessary qualities to fulfil the requirements of prescription. The user must be "as of right" and not as a result of force; secrecy; permission of the servient owner; or a mistaken view of the right by the dominant and servient owner.
In the recent case of Tara Hotel v Kensington Close Hotel {[2010] EWHC 2749 (Ch)}, the High Court held that the Kensington Court Hotel had acquired a right of way over a road owned by the Tara Hotel by a lost modern grant. It did not matter that there was a question mark over whether there had been permission for the most recent use. 20 years use since 1980 could be proved.
In 1973 the then owner of Tara Hotel had granted the then owner of Kensington Court Hotel a licence to use the road for certain purposes. Ownership of both hotels subsequently changed. The licence was personal to the company who owned Kensington Court Hotel at the time and it expired at the latest in 1980 when it sold the site. Kensington Court Hotel continued to use the road. This use was by coaches and commercial vehicles, including small vans. It was partly outside the terms of the expired licence which permitted use only by large service vehicles which were unable to use another access and small vans over part of the road only. Tara Hotel asserted that continued use of the road was with their permission and was in effect a continuation of that under the 1973 licence, even though it no longer governed the position. The court disagreed. For use to be with the permission of the servient owner there had to be an unequivocal overt act. For an implied licence to arise following termination of the express licence there had to be a positive act by the owner of Tara Hotel. The fact that a carefully drafted personal licence was granted to a particular licensee in 1973 could not be regarded as a positive act evidencing an implied licence from a different servient owner in 1980 for use by a party not within the terms of the earlier licence. The user was, therefore, not with permission.
The acquiescence of the servient owner is key. A grant cannot be presumed from long use without him having had knowledge or at least the means of knowledge. Actual ignorance does not always defeat a claim. Where an ordinary owner of land, diligent in the protection of his interests, would have a reasonable opportunity of becoming aware of the enjoyment of another person over his land, he cannot allege that it was secret. The freehold owner of the land must: know, or be taken to know, of the use; and be in a position to prevent it if he wished to do so.
The latest case on lost modern grant is Llewellyn v Lorey {[2011] EWCA Civ 37}. The Court of Appeal held that the High Court had been wrong to find that the Llewellyns had sufficient user to establish a vehicular right of way, for commercial purposes, over a lane on land owned by Mrs Lorey. There had been no acquiescence in the use of the right of way during periods when a life tenancy and subsequently a tenancy existed. This meant there was insufficient continuous use on which to base a claim for a prescriptive right. The use must have been continuous in the sense that the claimant has exercised the right he asserts whenever he wished and that there are no intervals of such length to show the alleged use really amounts to no more than isolated acts. The use need not be constant, but where it has not been, this should not be due to the interference of the owner of the servient tenement.
SECTION 62
Where land is transferred, subject to contrary intention, existing easements are automatically conveyed under Section 62 of the Law of Property Act 1925. Additionally, licenses may be transformed into legal easements. A limitation of Section 62 is that it does not act to imply reservation easements; for example, a land owner in common ownership of two plots of land could not claim that, after selling one plot, his remaining plot should have an easement for right of light implied.
In Mulvaney v Jackson {[2002] EWCA Civ 1078}, the claimant was the owner of one of a group of cottages which, together with adjacent land, belonged to the defendants' predecessor in title before they were sold off. Since 1970, the claimant had used the land with the other cottage owners as a communal garden. In 1996, the defendants removed a flower bed tended by the claimant on part of the land abutting her wall. The Court of Appeal held that, even though the defendants had not themselves created or maintained the garden, the land had been used as such ever since the sale of the cottages; and that, accordingly, the claimant was entitled to a right to use the land as a communal garden along with the other dominant owners.
The Court of Appeal would only grant a declaration that Mrs Jackson had the right to use the land in common with others as a garden. Mr Mulvaney could carry out work on the land, as long as he did not prevent its use as a garden. All the owners of the cottages had a right to the use of the land as a garden amounting to an easement. There is a difference between a case in which the easement claimed was the subject matter of an express grant and one which is said to have arisen by prescription or under section 62. Where the vendor owned the entire width of an adjoining road the common law highway presumption applied so that the owner was deemed to have conveyed the whole of his interest in the road {Commission for New Towns v JJ Gallagher Ltd {[2002] EWHC 2668}. There is a presumption of law that a conveyance of land next to a highway carries with it that part of the highway which adjoins the land, and is owned by the vendor.
In the case of P&S Platt Limited v Crouch {[2003] EWCA Civ 1110}, the defendants were the vendors of a hotel. The land on which the hotel stood was close to the river but not next to it. Between the hotel and the river was an island also owned by the defendants. On the riverside of this island were three moorings. For many years the defendants and their predecessors in title had used these moorings for the benefit of hotel customers. There were indeed signs - not only on the riverbank, but also on the path leading from the hotel to the riverbank advertising the moorings as being "Strictly for hotel customers". The claimant company contracted to purchase the hotel and its business. It also took an option to purchase the island owned by the defendants. The contract for the purchase of the hotel was completed. Although the claimant wanted to exercise the option to purchase the island it missed the date for its exercise. The defendants contended that not only had the claimant lost the right to buy the island but in addition had lost the right to use the moorings. The contract was silent so far as use of the moorings was concerned. It did, however, incorporate a standard clause which in turn had the effect of applying section 62 of the Law of Property Act 1925 to the contract of sale. Whether an easement to use the river moorings had arisen as a result of the sale of the hotel became the central issue in the case. The Court of Appeal rejected the notion that it was appropriate to look at the course of negotiations between the parties prior to the contract of sale in order to seek to discover what the parties common intention may have been. The Court of Appeal emphasised that, save in cases where rectification was raised, it was not legitimate to go into the negotiations. What is said in the course of negotiations provides too uncertain a guide as to what is the position between contracting parties when later they commit themselves finally by their contract. If the law were otherwise, then whenever an argument might arise as to the existence or otherwise of a possible section 62 right, the parties would be prompted to trawl through all the pre-contract negotiations. Platt should put an end to this. The result of P and S Platt Ltd v Crouch, was that section 62 operated to convert the mooring rights previously used in connection with the hotel purchased by the claimants into full easements.
The latest important case on section 62 is Wall v Collins {[2007] EWCA Civ 444}. Mr Wall appealed against a decision that he did not have a right of way over a passageway running between his property and that of the defendants.
Mr Wall was the freehold owner of a house and the defendants were the owners of an adjoining property. Mr Wall was also the owner of a leasehold interest in a plot of land to the rear of the house on which he had built a garage. The original leasehold of both the house and the defendants’ property had been granted for a term of 999 years in 1910. Mr Wall bought the house in 1999 and the freehold interest was transferred to him but the leasehold interest was not separately registered and the reference to the 1910 lease in the charges register was removed. Mr Wall claimed a right of way over a passageway running between the house and the defendants’ property on the basis that it had been granted by way of an assignment made in 1911.
The judge held that the right of way granted by the 1911 assignment could only attach to the leasehold interest in the house, which was what was being assigned, and that if a leasehold estate was merged with a freehold estate, any easements or covenants attached to the leasehold interest were extinguished. The judge further found that the leasehold interest in the house had ceased to exist by way of a merger and that, in any event, the leasehold interest was surrendered by operation of law in 1999 when Mr Wall acquired the freehold.
The Court of Appeal allowed the appeal. It held that the premise of the judge's reasoning was that the right of way was attached to the 1910 lease and that therefore when the lease was extinguished by merger, the right was lost. That approach was wrong. An easement had to be appurtenant to a dominant tenement, but not necessarily to any particular interest for the time being. All that mattered was that the grantee had an interest at least co-extensive with the period of the easement. It followed that the merger of the lease into a larger interest in the dominant tenement was not in itself fatal to the continued existence of the easement for the period for which it was granted. The dominant tenement remained unchanged and there was no legal impediment to the continued enjoyment of the easement by the occupier for the time being of that tenement. The merger of the lease in 1999 did not destroy the easement, at least to the extent of the 1911 grant, and the 999-year right was amply sufficient for Mr Wall to benefit from the right of way.
In relation to the question as to whether an equivalent right of way passed with the conveyance of the freehold of the house, section 62 provided direct support for the argument that Mr Wall’s right of way was not limited by the extent of his former leasehold interest. In the absence of any indication of contrary intention, the right of way, should in principle be treated as having passed with the freehold. The disappearance by merger of the lease of the house in 1999 did not affect the continuation of the right for the benefit of the freehold.
Even where the original dominant tenement was extended, the enjoyment of the easement could continue for the benefit of the enlarged property if the additional use was merely ancillary. In the present case, there was no reason for holding that the use of the garage on the plot of land was anything other than ancillary to the ordinary residential use of the house and the right of way could therefore be used to benefit the use of the garage. The appropriate declaration was that Mr Wall, as owner of the house and of the plot of land, enjoyed a right of way over the passageway to the extent that it was reasonably required for the convenient enjoyment of the house.
DEROGATION FROM GRANT
Derogation from grant is a common law concept that is usually met in the context of landlord and tenant. However, it applies just as much where there is a grant of a freehold easement.
The grantor cannot take away with one hand, eg by act or omission on its own land, what it has granted with the other. In the recent case of Carter v Cole {[2009] EWCA Civ 410}, the Court of Appeal considered derogation from grant.
The Coles bought land from the Carters, and the Carters granted the Coles a right of way over the Carters' retained land. The Carters were applying for planning permission for a bottling plant, and one of the conditions was that there would be a visibility splay at the edge of the Coles' servient land. The Coles knew, at the time they bought their land and granted the access right, of the requirements of the planning consent for the bottling plant, including that for adequate visibility splays. The tenant of the bottling plant left, in part because permanent planning consent had been refused on grounds that the sight lines at the junction between the access road and the main highway were obstructed and dangerous. The planning inspector did not believe this was a problem the Carters could solve since they did not own or control the splay land. The Carters sought permanent planning consent for use of the retained land as offices, which was refused on the same grounds. Faced with their retained land being effectively sterilised, this time it was the Carters who sought help from the Court of Appeal. They argued, successfully, that, by putting in fencing and allowing the vegetation to grow up high on the visibility splay land, the Coles were derogating from their grant to the Carters of the right of access in the original transfer.
The Court of Appeal held that there was a derogation from grant. Since the owner of the servient tenement knew at the time of the grant of the right of way that a visibility splay was required in order for the easement owner to be able to make use of the easement owner's land in accordance with the existing planning permission, the right of way included a right to a visibility splay. It must have been obvious to the owner of the servient tenement at the time the right of way was created that it could not interfere with the visibility splay without severely impacting the easement owner's ability to use the right of way.
In May 2009 the Court of Appeal granted the following remedies for such derogation from grant: firstly, a mandatory injunction forcing the Coles to remove the obstructions and reinstate the visibility splay; and secondly, damages to compensate the Carters for being unable to use their retained land for any commercial purpose in the period until such planning consent was obtained.
Derogation from grant was also at the heart of the claim in William Old International Limited v Arya {[2009] EWHC 599 (Ch)}. The High Court held that an easement is negative in character and, save in limited circumstances, cannot carry an obligation to take positive steps. Likewise, the principle of derogation from grant does not extend to the imposition of positive obligations.
The decision accords with a long line of authority to the effect that both easements and the principle of non-derogation ire negative in character. In this, as in other contexts, the principle that positive obligations do not run with the land is in evidence. The court concluded that it would not have been the intention of the original parties to the grant that the owner of the servient tenement should be required to enter into any further deed of grant with a utilities company. Would the decision have been any different if the court had found that the original parties to the grant had held such an intention? Probably not, as the principle that easements and the duty not to derogate from grant impose only negative obligations would still have been fatal to the claim.
FUNCTION
A right of way must have a specific function. Usually the function is to get from A to B. Disagreements can arise if a landowner exercises a right of way in order to gain access to land other than that for which the way has been granted.
The general rule is that a right of way enures for the benefit of dominant tenement alone and cannot be exercised in order to gain access to other land in common ownership with the dominant tenement. The leading case is the well-known decision of the Court of Appeal in Harris v Flower {(1904) 74 U Ch 127}.
Even at the time of the decision it was recognised that it might be permissible to exercise a right of way in order to gain access to a non-dominant tenement if that access was in reality for the benefit of the dominant tenement. Thus, in the case of Williams v James {(1867) LR 2 CP 577}, it was held that the exercise of a right of way to gain access to land adjoining the dominant tenement was permissible where the way was exercised in good faith for the purposes of removing crops grown on the dominant tenement but stored upon the adjoining land.
This principle, as developed in subsequent case law, has come to be referred to as the doctrine of ancillary use within the authorities. The first reported case upon the doctrine is the decision in National Trust v White {[1987] 1 WLR 907}. The point at issue in that case was whether visitors to an ancient monument were entitled to pass across a right of way granted for the benefit of the monument in order to gain access to a public car park sited a short distance away. The court accepted that the rule formulated in Harris was subject to an exception in those cases where the exercise of the right of way for access to the non-dominant tenement was subsidiary and its principal user had been for the purpose of gaining access to the dominant tenement. On this basis, the court held that it was permissible for visitors to the monument to use the right of way to gain access to the car park because that use was no more than ancillary to the enjoyment of the monument itself. In more recent times, there have been conflicting judgments from the Court of Appeal {contrast Das v Linden Mews Ltd {[2002] EWCA Civ 590} and Massey v Boulden {[2002] EWCA 1634}}. In Macepark (Whittlebury) Limited v Sargeant {[2003] EWHC 427 (Ch)}, the High Court extracted the following principles from the caselaw.
• An easement must be for the benefit of the dominant land.
• It must not in substance be used for the benefit of the non-dominant land.
• Under the doctrine of ancillary use, use is not in substance for the benefit of the non-dominant land if the extent of the use for the benefit of the non-dominant land is insubstantial.
• Benefit in this context includes use of an access in such a way that a profit may be made out of the use of the non-dominant land, for example as a result of an arrangement with the owner of the dominant land.
• Whether the doctrine of ancillary use applies in any given case will ultimately be one of fact and degree.
• One significant factor is whether the benefit to the non-dominant land is likely to have its own commercial value.
Often, an easement is granted for access to adjoining property for the purposes of rebuilding or renewal. The Court of Appeal has recently provided guidance on this in the case of Risegold Ltd v Escala Ltd {[2008] EWCA Civ 1180}. It concerned neighbouring freehold premises at Quaker Court, London, consisting of industrial units, and the extent of an easement granted to the owner of one of those premises, giving it the right to enter into part of the adjoining premises. The issue in dispute was whether the wording of the easement entitled Risegold to use its right of way over the adjoining property for the purposes of constructing the development. The total period of construction was anticipated to be in the region of 65 weeks. Risegold sought a declaration from the High Court that the wording of the easement entitled it to enter the adjoining property for this purpose. At first instance, this declaration was refused. The Court of Appeal allowed the appeal. In reaching its decision, the Court of Appeal attached particular significance to the combined use of the words "rebuilding" and "renewal".
The redevelopment of a property constituted "rebuilding or renewal" within the meaning of the grant and the right of entry invoked by Risegold covered its redevelopment to the property as either rebuilding or renewal. So, in good news for developers with unclear easements of entry, the Court of Appeal's decision may prove useful and may open up development possibilities that may otherwise not have been contemplated.
However, a note of caution must also be sounded.
Context is everything is the key message to be taken from the Court of Appeal's ruling. Developers should not therefore automatically assume that all easements granting access to adjoining property for the purpose of "rebuilding" or "renewal" will give them an automatic right to access the land for the purpose of redevelopment.
MULTIPLE CHOICE TEST Subscription Area: Property Title of Recording: Easements (Feb 2012)
NAME OF LAWYER...............................................................................................
RING THE CORRECT ANSWER
PART ONE - RIGHTS OF WAY
Question 1: Audrey has a farm. Her neighbour is William. There are two routes from Audrey's farm to the main road: a long one; and a short one. However, she only has a legal right of way over the long one. William granted her predecessor a license to use the short road. Does the benefit of that permission pass to successors in title like Audrey?
A no
B only if registered
C yes
Question 2: Which statutory provision might assist Audrey?
A section 22 of the Commons Act 2006
B section 62 of the Law of Property Act 1925
C section 103 of the Countryside and Rights of Way Act 2000
Question 3: Does it make any difference if Audrey is a tenant?
A no
B only if her lease is less than 7 years
C yes, her rights would be extinguished when the tenancy ends
PART TWO - OTHER EASEMENTS
Question 4: If it were established that Audrey does have a right of way over the short route, which of the following uses might exceed the right?
A driving cattle
B riding on horseback
C walking by foot
Question 5: Audrey proposes to build a new shed. Which of the following rights of William must she respect?
A right to roam
B right to a view
C right to light
Question 6: If William finds one of his easements infringed, and the infringement is substantial and continuing, what is the normal remedy?
A damages
B injunction
C fine
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