Land Law

Ninth edition

by Mark Davys

Suggested Answer to Exercise 8.4 (Part 3)


A Detailed Answer Plan

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Introduction

Assuming that Sam was not a party to any of the arrangements, the rights created will only affect him if they are proprietary rights that now benefit or burden land that he has inherited.

The three rights concerned are all rights to do something on someone else’s land. This is a characteristic feature of easements. Sam (more strictly, Sam’s land) will benefit from the right of storage and the right to use the field as a play area if these rights satisfy the requirements for an easement. Jeff will still be able to use the short cut if that right is an easement. If any of the rights are not easements they are most likely permissive licences: they will not survive Megan’s death and Sam and Jeff will have to negotiate new terms.

To be an easement the right claimed must satisfy two tests:

  • Is the right claimed capable of being an easement?
  • Has it been acquired in one of the ways that can create an easement?

It is generally recognised that a right must satisfy the four requirements adopted by Evershed MR in Re Ellenborough Park [1956] Ch 131 if it is to be an easement.

  • There must be a dominant and servient tenement.
  • The right must accommodate the dominant tenement.
  • The dominant and servient tenements must be owned or occupied by different people.
  • The right must be capable of being the subject matter of a grant.

Easements can be created by statute (not applicable to this question), by deed (expressly or by implication) or by prescription (long user).

The detailed requirements will be considered when examining each of the rights claimed in this question.

It may also be necessary to consider whether any of the rights that are easements needed to be protected by registration.

Storing the Tractors

  1. Capable of being an easement?
    1. Jeff’s land is the servient tenement; that belonging to Sam (formerly Megan) is the dominant tenement.
    2. Does the right accommodate Megan/Sam’s land?
      • Primarily a question of fact: Re Ellenborough Park [1956] Ch 131.
      • A right that benefits a business can also benefit the land: see, for example, Moody v Steggles (1879) 12 Ch D 261. However, this will not always be the case (Hill v Tupper (1863) 2 H & C 121).We need to know how important the tractors were to Megan’s business and her use of the land). Was there nowhere on Megan’s land that they could be stored?
    3. There is separate ownership.
    4. Capable of being the subject of a grant?
      • There are cases where the right to store goods has been held to be an easement (for example, Wright v Macadam [1949] 2 KB 744).
      • However, such cases cause problems because it has been traditionally understood that an easement must not preclude the reasonable use of the servient land by its owner (for example, the Court of Appeal in Bachelor v Marlow [2003] 1 WLR 764).
      • Many of the cases relate to car-parking – analogous to the situation here. In Hair v Gillman (2000) 48 EG 117the right to a single car anywhere on a forecourt large enough to take several cars was held to be capable of being an easement.
      • In the recent Scottish case of Moncrieff v Jamieson [2007] 1 WLR 2620, Lord Scott suggested that a better test was 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 we need more details about the arrangements for storing the tractors: how much of the barn do they occupy; how frequently are they moved, etc.
  2. Created as an easement.
    1. Express words in the deed of transfer to Jeff, if present.
    2. Implied reservation; the only two methods of implied reservation are necessity and common intention (easements cannot be reserved by use of the rule in Wheeldon v Burrows nor by s.62 LPA 1925)
      • Necessity: the servient land must be completely unusable without the right. This seems unlikely in this case: the courts are very reluctant to allow easements to be reserved by necessary implication (see, for example, Adealon International Corp Proprietary Ltd v Merton LBC [2007] 1 WLR 1898).
      • Common intention: this will depend upon there being some evidence that Megan and Jeff intended that Megan’s retained land be used in a particular way that could only take place if she had the right to store the tractors in the barn. There is a strong evidential burden on Sam, as the courts will not readily infer a reserved easement of common intention.
    3. Prescription, if Megan has been continuously storing the tractor in the barn since the conveyance (more than 20 years) openly, as of right and without Jeff’s permission. Of the three types of prescription, common law is unlikely to be applicable as it seems unlikely that the right could have been exercised in 1189. However Megan may be able to establish an easement by lost modern grant or using the Prescription Act 1832.

The Short Cut

  1. Capable of being an easement?
    1. Megan/Sam’s land is the servient tenement; the field belonging to Jeff (leasehold) is the dominant tenement.
    2. Does the right accommodate Jeff’s land?
      • Primarily a question of fact: Re Ellenborough Park [1956] Ch 131.
      • Depends upon the purpose of the shortcut.
    3. There is separate occupation – and separate ownership of the two legal estates that include the field.
    4. Capable of being the subject of a grant?
      • This is unlikely to be a problem: rights of way are an established category of easement.
  2. Created as an easement.
    1. There are express words in the deed of transfer (lease) to Jeff.
      However, a legal easement must be for a term equivalent to one of the two legal estates: that is, indefinite or for a term certain (section1(2)(a) of the LPA 1925). The words of limitation in the lease are too vague to sustain an easement.
    2. However, it might be possible for Jeff to have acquired an unlimited easement by section 62 of the LPA 1925 if he had a licence (permission) from Megan to use the short cut to get to the field (and he was using the field) in the weeks before the lease was granted to him. More information is needed to determine whether this is the case.

Playing in the Field

  1. Capable of being an easement?
    1. Jeff’s land is the servient tenement, that belonging to Sam (formerly Megan) may be the dominant tenement – but where was the nursery operated from?
    2. Does the right accommodate Megan/Sam’s land?
      • Primarily a question of fact: Re Ellenborough Park.
      • A right that benefits a business can also benefit the land: see, for example, Moody v Steggles (. However, this will not always be the case (Hill v Tupper).How important to the survival of the nursery was the right to use the field?
    3. There is separate ownership.
    4. Capable of being the subject of a grant? Whether the right is capable of being an easement in this case is likely to depend upon the detailed terms, if any, as to the use of the field.
      • The main difficulty here is whether the right is capable of sufficiently accurate definition.
      • At one extreme, it has long been established that a right to enjoy a good view is too imprecise to be an easement (Aldred’s Case (1610) 9 Co Rep 57b, 77 ER 816).
      • However, the right to use an airfield has been held to be an easement (Dowty Boulton Paul Ltd v Wolverhampton Corporation (No.2) [1976] Ch 13) and Re Elleborough Park itself concerned the right to use a ‘leisure garden’.
      • There may also be a difficulty if the use of the field as a play area significantly limits Jeff’s control of the land (see the discussion of Bachelor v Marlow and Moncrieff v Jamieson above).
  2. Created as an easement.
    1. A legal easement can only be created by statute, deed or prescription. If Jeff’s written agreement with Megan was a deed this would be sufficient to create a legal easement, although it would also need to be registered if the title to Jeff’s land is registered (s.27(2)(d) of the LRA 2002).
    2. Otherwise the right will, at best, be an equitable easement. This would be binding only if it were protected by registration as a land charge (if Jeff’s title is unregistered) or by an entry on the Title Register if Jeff’s title is registered.

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