Consolidation session 17 June 2014 Easements Consolidation session 17 June 2014

Overview of Session What is an easement? Characteristics of easements Acquisition of easements Consideration of a sample examination question

What is an Easement? An easement is a right which benefits one person’s land that is enjoyed over someone else’s land Benefiting land - dominant tenement Burdening other land – servient tenement

Characteristics of an Easement These are set out in the key case of Re Ellenborough Park [1956] Ch 131 There must be dominant and servient tenements The easement must accommodate the dominant tenement The dominant and servient tenements must be owned by different people The right must be capable of forming the subject matter of a grant To accommodate the dominant tenement – must benefit the dominant land in some way. Can’t grant a right to your self. If you already have the right it is not possible to give yourself a right which you already have.

Right capable of subject of a Grant Bakewell Management Ltd v Brandwood [2004] UKHL If the right could not have been lawfully granted by deed i.e. a right to pollute a river contrary to a statutory prohibition, then it cannot be capable of being the subject of a grant The easement would not be acquired as it does not meet the requirements of Re Ellenborough Park

Acquisition of Easements Express Grant Wheeldon v Burrows [1879] 12 Ch D 31 S62 Law of Property Act 1925 Prescription Common law Statute Lost Modern Grant

Acquisition of Easements

Express Grant S1(2)(a) Law of Property Act 1925 Can only be legal easement if it is for an interest equivalent to an estate in fee simple absolute

Express Grant S52 (1) Law of Property Act 1925 The grant needs to be made by Deed in compliance with the terms of this statutory provision

Express Grant S27(1) Land Registration Act 2002 The deed needs to be registered to bind successive owners of servient land It is only a legal easement once it has been registered

Express Grant Once the deed has been registered it will appear on the Property Register of the dominant tenement and the Charges Register of the servient tenement Until the easement is registered it remains equitable and will not bind a buyer of the servient tenement

Wheeldon v Burrows The right must be: Continuous Apparent Necessary for the reasonable enjoyment of the land Being used by the seller for the benefit of the land at the time of the sale

S62 Law of Property Act 1925 (1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of the conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the to the land or any part thereof. (4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained. (5) This section shall not be construed as giving to any person a better title to any property, right, or thing in this section mentioned than the title which the conveyance gives to him to the land or manor expressed or conveyed, or as conveyancing to him any property, right, or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveyancing parties.

Prescription Three kinds of prescription: Common law Prescription Act 1832 Lost Modern Grant User as of right is common to all three

User as of Right Without force Without secrecy Without permission Two further conditions: Fee simple owner against fee simple owner User must be continuous for the requisite period

Prescription Common Law User as of right since time immemorial

Prescription Prescription Act 1832 S2 provides that user as of right for 20 years without interruption defeats the common law defence that the user began after 1189 If the servient owner interrupts the user then that will defeat the claim. An interruption will not count if the dominant owner does not acquiesce in it for a year The 20 years must be the 20 years immediately before the suit or action in which the matter arises

Prescription Prescription Act 1832 S4 where the right has been enjoyed for 40 years then it becomes absolute and indefeasible.

Prescription Lost Modern Grant The right has been enjoyed for 20 years Deemed to have been originated by a Deed which has then become lost Particularly useful where the right has been used for 20 years and then there has been a subsequent break

Acquisition of Easements

Examination Question Jason was the registered freehold proprietor of a large property known as Matha House which was set in extensive grounds. Martha House was always expensive to maintain so in 2000, to raise much needed funds, Jason granted a five year lease of a cottage in the grounds (Lilac Cottage) to Peter. Lilac Cottage had only a very small garden and just enough space to park one vehicle outside. At that stage, Peter did not own a car. However two years later, Peter did acquire a car and Jason agreed orally to let Peter use his driveway to access Lilac Cottage directly from the main road. When the lease expired in 2005, Jason’s financial position had not improved and so he sold the freehold of Lilac Cottage to Peter. The transfer contained the right for Peter or his visitors ‘to park in one of the four parking spaces adjacent to Matha House’. It made no mention of the right to use the drive. Last year Peter sold Lilac Cottage to Shirin and Jason sold Martha House to a developer, Prestige Properties Ltd. Prestige Properties Ltd now seeks your advice. They plan to renovate Matha House and turn it into a luxury hotel and spa. Their managing director, Gina, wants to know whether the company can stop Shirin from using its driveway as the plans are to build a swimming pool over it. Gina would also like to stop Shirring from using the parking space as all spaces will be needed for clients of the spa. In addition, Gina has received a letter from a neighbouring freeholder, Edward. He too objects to the plans for the swimming pool area, as he claims his drains run under the driveway and have done since his bungalow was built in the late 1970s. Gina admits this is true but her research has revealed that the house stood empty and derelict for several years until Edward bought it in 2001; she asks whether this is relevant. Can Prestige Properties Ltd stop Shirring from using the driveway and the parking space? Does Edward have a valid right of drainage and will Gina’s findings have any effect on the advice?

Examination Question Structure for response: Characteristics of an easement? How has the right been created? Consider the alternatives Apply the facts to the possible methods Conclusion

Examination Question What rights are raised? Driveway Parking space drainage

Examination Question Driveway Does it have the characteristics of an easement? – Re Ellenborough Park Was an easement created? Transfer in 2005 No reference to the drive Prescription will not apply – with permission five years ago Possible necessity – however, P had managed for two years prior to this. Possible common intention (Pwllbach Colliery Co Ltd v Woodman) S62 LPA 1925 – purchase of freehold in 2005 counts as a conveyance. At the time of the sale Martha House & Lilac Cottage were in separate occupation. Converts the right to an easement. Benefit of the right will pass to Shirin from Peter Is Prestige Properties Ltd bound by the easement? It is legal as it is implied into a deed on a sale of part. Title to Martha House is registered so PP will be bound as the easement was an overriding interest under Schedule 3 para 3 LRA 2002 at the time of the sale.

Examination Question Parking Space Does it have the characteristics of an easement? – Re Ellenborough Park Must leave the servient owner with reasonable use of the land and not exclude him entirely (London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd) Expressly included in 2005 Transfer Capable of being legal – s1(2) LPA 1925 Created by deed – s52 LPA 1925 The benefit will pass from Peter to S – s62 LPA 1925 Prestige will be bound if the easement is registered before PP’s interest is registered.

Examination Question Drainage Does it have the characteristics of an easement? – Re Ellenborough Park Method of creation: No express grant No past sale of part Must rely upon prescription Common law conditions: User as of right Use by one fee simple owner against another Continuous user

Examination Question Drainage (continued) Three possible mechanisms: Prescription 1832 – must show without interruption Common law – 20 years, but continuous since 1189 – this is rebutted as the property recently built Lost Modern Grant – 20 years. Can this be established? If so, there is no need to bring a court action to establish his right. There will be a valid easement. The break after the 20 year period will not matter as the easement was already established. It could be argued that the period of non-use and dereliction would result in an extinguishment of the right (Moore v Rawson)