The Law of Easements or Right of Way - Coursework Example

?Question The legal issues arising out of Margaret’s sale of three terraced houses to Arthur, James and Barry, and Arthur’s subsequent sale of his purchase to Samantha involves the law of easements or right of way. An easement is defined as a right over another’s land and if the easement is comprised of a proprietary interest in realty, its benefit and burden can pass to successive owners. Pugh-Smith, Sinclair and Upton describe an easement as: An interest in land which entitles a landowner to use, or restrict the use of, his neighbour’s land in a particular way without giving him possession of it.1 In evaluating the existence and binding nature of the various easements created out of the sale of Margaret’s terraced houses, it is necessary to first establish the essential characteristics of an easement. The Court of Appeal provided that the four essential characteristics of an easement must exist. First there is required to be a dominant and servient tenement in which a benefit (to the dominant tenement) and burden (to the servient tenement) are each defined. Secondly, the easement must be capable of benefiting the dominant tenement. Thirdly, the dominant and servient tenement must own and occupy different pieces of land. Fourthly, the easement must be one that is capable of being created. In other words, the person creating the easement must have the authority to do so and the recipient must have the right to accept it. The easement must be unambiguous and the servient tenement may not be denied excessive rights.2 An evaluation of the facts of the case demonstrate that there are benefits and burdens, in which the dominant tenement acquires a benefit and the servient tenement is not denied too many rights. For example, Margaret permitted Arthur to park his caravan in her garden with the understanding that she could sit a satellite dish on his roof. Since this was placed in the Conveyance of registered title, it is a legal easement. Section 1(2) of the Law of Property Act 1925 essentially provides that a legal easement arises once it is conveyed.3 Likewise the easement permitting James to temporarily store material in Margaret’s garden is also a legal easement since it is conveyed via the conveyance. Moreover, by placing these easements in the conveyance, the requirements contained in Section 52 of the Law of Property Act 1925 which mandate that a legal estate in land may only be created by deed.4 Moreover, as registered land, the easements will not be legal unless they are registered.5 In other words only those easements expressly created in the conveyance of registered land will be binding on the dominant and servient tenements. Therefore the oral agreement that Arthur may hang a sign advertising his business on Margaret’s wall is not binding on Margaret and successive owners. To this end, Barry as a successive owner of Margaret’s property is at liberty to have the sign removed. Wheeldon v Borrows however, indicates that Barry might be bound by the oral easement which creates an equitable right. In this case Thesiger LJ delineates the circumstances in which a right created by an easement that was not express, can be acquired by a successive owner over the land. According to Thesiger LJ, successive owners acquires all of the obvious and continuous easement or any easement that is essential for ensuring that the property is reasonably enjoyed provided that easement was used by the vendor just before the property was sold. However, the second rule expressed by Thesiger LJ in Wheeldon v Burrows suggests that Barry may not be bound by the oral easement. By virtue of the second rule, where the vendor sells adjourning land and fails to give expression to an implied or imperfect easement, he may not claim it at a later date.6 It therefore follows that since Margaret failed to expressly provide for the right to hang a sign on her wall, she was not bound by this easement and as such cannot pass the easement on to successive owners of the land. It would appear that each of the easements that were expressly provided for in the conveyance will be binding on each of the successive owners of the terraced property since they are legal easements and meet the requirements of writing. The unofficial easement will not be given effect unless the courts find that the easement was necessary to give effect to the intentions of the parties.7 Since Margaret included easements in the conveyance and failed to provide for the hanging of the business sign in the conveyance, it must be concluded that she did not intend that the right be exercised by successive owners. Question 2: In order to determine the extent to which proprietary estoppel has altered the distinction between licences and proprietary interest it is first necessary to highlight the traditional distinctions between the two. A licence is regarded as not constituting a proprietary interest. Vaughan CJ explained in Thomas v Sorrell that a licence does not pass an interest and neither does it alter or transfer “property in anything, but only makes an action lawful, which without it had been unlawful.”8 A license is therefore a right over land rather than an interest in land and therefore does not run with the land.9 In other words, a licence lacks permanence. By contrast, a proprietary interest in land is: Definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.10 Essentially, a proprietary interest can run with the land and can bind successive owners of the land. A license is personal and nature and since it does not attach to the land, it cannot bind successive owners.11 The only way that a licence can bind successive owners is if it functions to create a constructive trust.12 Nevertheless, a licence is typically incapable of binding successive owners. A major result of the distinction between the proprietary interest and licences is that a proprietary interest is enforceable against third parties whereas a licence is not. A licence will not be enforceable against third parties unless the courts can intervene on the grounds that the ends of justice demand it. This would typically occur when a licence gives rise to a constructive trust.13 In this regard, the court’s ability and willingness to intervene when the ends of justice demand it demonstrates that equity has a greater role to play and thereby renders the distinction between licences and proprietary interest has been altered by the doctrine of proprietary estoppel. In Taylor Fashions v Liverpool Trustees [1982] QB 133, the court ruled that proprietary estoppel will be used in the plaintiff’s favour when there is proof that some form of assurance was depended on to the plaintiff’s detriment.14 Moreover, in Crabb v Arun DC [1976] the court ruled that if it is satisfied that there is equity, it will attempt to ensure that the licence is observed and enforceable in a manner that corresponds with the circumstances and facts of the case. 15 Essentially, what has developed at common law is a practice by which the courts will use the doctrine of proprietary estoppel to prevent an injustice, regardless of whether or not the claimant’s matter is connected to a license or a proprietary interest. It remains uncertain whether or not the courts have now come to determine that once a licence necessarily invokes the doctrine of proprietary estoppel, whether or not it automatically becomes a proprietary interest.16 Thus we are left with the words of Denning MR in Crabb: Short of an actual promise, if he by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights – knowing or intending that the other will act on that belief – and he does so act, that again will raise an equity in favour of the other, and it is for a court of equity to say in what way the equity may be satisfied.17 It therefore follows that should an individual under a licence take up residence on the property of another and acts to his own detriment with the consent of the grantor of the licence, the courts will not automatically take the position that the licence does not create an interest in the property. The court would examine the facts and circumstances of the case and ultimately determine whether or not the grantor of the licence should be barred from dispossessing the grantee without more. The doctrine of proprietary estoppel has developed in this way to prevent an injustice. By doing so, it is no longer clear whether or not it is necessary to distinguish between proprietary interests and mere licences. Although the orthodox view is still relevant, there are circumstances in which the orthodox definition of a licence will function to unjustifiably deny an individual of an acquired interest and right. In this regard, the distinction between licences and proprietary interests is only necessary when a bare licence without more is obvious. However, when a licence necessarily incurs equitable interests the distinction between a licence and a proprietary interest is entirely unnecessary. This is demonstrated by the operation of the doctrine of proprietary estoppel which has effectively altered the distinction between the two in appropriate circumstances as a matter of conscience. Question 3 A. Richman’s use of the Car Park Whether or not Richman can use the car park would depend on whether or not there was an easement capable of binding successive owners. An easement is an “incorporeal hereditament” comprises of a “nonpossessory interest in land that can be inherited.”18 An easement is essentially a right to use another’s property for particular purposes and the use of paths and drives located on adjourning properties are the most common easements. This is referred to as a servient tenement. An easement can be created by virtue of a deed or by necessity or by implication or by prescription.19 Section 62 of the Law property Act 1925 provides that easements arise in circumstances when there is "some diversity of ownership or occupation of the quasi-dominant and servient tenements prior to the conveyance". 20 However an easement will run with the land unless the conveyance of the land provides otherwise. 21 Richman has discovered that the right to use the car park is not reflected in the deed of conveyance of 2004 in which the freehold was transferred to him. It therefore follows that the easement, if it does exist, was not created by grant. It is now necessary to determine whether or not the easement was created by implication or necessity or by prescription. Easement by prescription can be ruled out as the prescribed period is 20 consecutive years of uninterrupted use of the servient tenement.22 Whether or not the easement can be implied or was created out of necessity is another matter. An easement will be implied if it is necessary for the purchaser to fully enjoy the use of his/her land.23 For An easement to rise to the level of necessity it must be shown that the purchased land could not be used without the easement.24 Certainly Richman’s property can be used without access to the adjourning club’s parking lot. Moreover, it was held in Titchmarsh v Royston Water that if there is another method for using the property, regardless of how inconvenient it may be, no easement of necessity will be implied.25 Richman can certainly use the property as a country retreat and for weekend parties. The fact that his guests may be inconvenienced by his lack of available parking spaces in no way restricts Richman’s enjoyment of the use of the land. Therefore in all the circumstances no easement of necessity will be implied in his favour and the club is at liberty to prevent his parking in the club parking lot on weekends, regardless of the fact that there are 400 parking spaces and only about ten of them are used on weekends. Unfortunately, Richman did not investigate the possibility of an easement prior to the purchase of the property. Had he done so, he could have negotiated for the right to park in the adjourning parking late to be granted in the deed of conveyance.26 B. Blocking the Notorious Ninth The club professional claims that the notorious ninth has been expelling balls across the adjourning property purchased by Richman for 75 years. If this is the case, the club professional does make a case in favour of the club on the basis of the law of prescriptions under the tenets of the lost modern grant. Buckley LJ ruled in Tehidy Minerals v Norman the doctrine of lost modern grant that functioned: where there has been upwards of 20 years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfill the requirements of prescription, then unless, for some reason .... the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made.27 The twenty years continuous use of the easement is also reflected in Section 2 of the Prescription Act 1832. However, in order to succeed the club must prove that they liberally exercised the use of the easement in such a way that is consistent with an entitlement to it. In order to successfully claim the acquisition of a prescription, the use of the easement for the continuous period of at least twenty years must comport with the Latin Maxim, ne vi, nec clam, nec precario.28 What this means is that the easement was used without force, without secrecy and without permission.29 Based on the facts of the case for discussion, it would appear that the club has been using the property purchased by Richman for a golf ball overpass for 75 consecutive years without permission. There was no request by vendor to use the property in that way prior to the purchase. Nor was there any express licence or otherwise acknowledging the use of the property for a golf ball overpass. Permission such as the paying of a fee for use of the easement would have nullified proof of the acquisition of an easement by virtue of prescription.30 Essentially, if Richman wants to rebut the existence of an easement by virtue of prescription he would have to find proof that permission was granted at some point so that the minimum period of twenty years acquisition of the easement by prescription was broken. Richman can also produce evidence for rebutting the acquisition of an easement by virtue of prescription by demonstrating that the easement was exercised by virtue of force during the 75 year period and to such an extent so as to break the 20 year minimum period of continuous use. Richman can also rebut the prescription by demonstrating that the easement was not used on a regular basis. For example in Hollins v Verney [1884] 13 QB 304, the use of an easement three times over a period of twelve yeas did not substantiate a claim that an easement was acquired by virtue of prescription.31 If Richman is unable to rebut the claim that an easement was acquired by virtue of prescription, he will not be able to stop the club using his property as a golf ball overpass. Question 4 Barbara’s ability to build the supermarket on the property and to take possession of the cottages will depend on the extent to which the restrictive covenants and the occupation of the two cottages are overreaching rights. To start with, Barbara is bound by the restrictive covenant to the extent that it is reflected on the land registry. However, the matter does not end there. The restrictive covenant is only binding on successive owners if the conveyance creating the covenant refers to the third party.32 Although the covenant was reflected on the register, the inexperienced clerk did not see the covenant and therefore failed to report it. The question however, is whether the conveyance creating the covenant specifically stated that it was binding on successive owners. It would appear that this was not the case as Barbara’s solicitor would have had possession of prior documents of title and would have been able to notify Barbara of the existence of the restrictive covenant and the fact that it was binding on her as a successive owner. Assuming that the solicitor did have access to the prior documents of title and read them, there is no statement in the conveyance creating the covenant that it would bind successive owners. Therefore based on the ruling in Amsprop Trading Ltd, Barbara is not bound by the restrictive covenant, despite the fact that it is registered and as such serves as notice to Barbara of its existence. As a result Barbara may build the supermarket on her property. With respect to obtaining vacant possession of the two cottages, Barbara has some practical difficulties. Pursuant to the theory that the land registry is meant to provide a mirror reflection of the rights and interests attached to registered land, the interests and rights of individuals who are in actual occupation of the land in question will not operate as overreaching rights in instances where a purchaser makes inquiries of the person in possession of the property and that person failed to disclose information about possessory rights and interests in circumstances where he/she are reasonably expected to make that disclosure. The occupier’s rights and interests will not bind the purchaser if actual occupation is not obvious when the purchaser conducts an inspection of the property. Moreover, the purchaser will not be bound by the rights and interest of persons in actual occupation if the vendor does not know of the interest or rights at the time of purchase.33 It would appear that the vendor did have actual notice of the Linda’s interest and rights as Linda produced a signed tenancy between her and Alberta, the vendor. Therefore Alberta’s failure to disclose this fact to Barbara appears to be willful. The fact is, Alberta, as the vendor can be reasonably expected to disclose the fact of the tenancy to Barbara and since she failed to make this disclosure, Barbara is not bound by Linda’s tenancy and can obtain vacant possession of the cottage that Linda occupies. The squatter’s possession is not as clear as Linda’s possession. Since the squatter was not documented or approved, there is no evidence to suggest that Alberta was aware of his occupation of the cottage. However, the fact that Barbara was able to discover the squatter’s occupation of the cottage upon a first inspection, indicates that Alberta very likely knew of his occupation. Even so, this may not be sufficient to confer upon Barbara the right of vacant possession of that particular cottage. The doctrine of adverse possession will determine whether or not Barbara can demand vacant possession of the cottage occupied by the squatter. If Alberta was previously dispossessed of the cottage by the squatter she could not have transferred the cottage to Barbara. Much will depend on how long the squatter occupied the cottage and whether or not he enjoyed quiet, uninterrupted possession of the cottage. By virtue of the Limitation Act 1980 any claim for recovery of land where a squatter has been in possession or occupation of that property for a consecutive period of 12 years from the date of an attempt to gain vacant possession will be statute barred.34 If Alberta took no action against the squatter and he had been in occupation of the cottage for at least 12 consecutive years, Alberta was statute barred relative to a claim for vacant possession. Time continues to run despite the fact that a new owner acquires the property on which the cottage in question is located. This much has already been established by the House of Lords’ ruling in J.A. Pye (Oxford) Ltd. and Others v Graham and Another. In this case, the House of Lords ruled that when ownership changes either by inheritance or otherwise and the possession continues, time continues to run uninterrupted.35 Therefore is Zach has already established residence in the cottage and has managed to live in the cottage for 12 consecutive years, Barbara is bound by Zach’s occupation of the cottage. Bibliography Textbooks Bryan, M. Private Law in Theory and Practice. (Routledge 2002). Dixon, M. Modern Land Law. (Taylor and Francis 2011). Dixon, M. Land Law. (Psychology 2001). Pugh-Smith, J.; Sinclair, G. and Upton, W. Neighbours and the Law. (Sweet and Maxwell 2006). Rossini, C. English as a Legal Language. (Martinus Nijhoff Publishers 2008). Articles/Journals Dwyer, J. ‘Book Review: The Law of Easements and Profits a Prendre by Peter Bland’. (1997) 2 CPLJ 68. Table of Cases Amsprop Trading Ltd v Harris Distribution Ltd and another [1997] 2 ALL ER 78. Crabb v Arun DC [1976] Ch. 179. Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229. Hollins v Verney [1884] 13 QB 304. J.A. Pye (Oxford) Ltd. and Others v Graham and Another [2002] UKHL 30. MRA Engineering Ltd. v Trimster Co. Ltd [1988] 56 P and CR 1. National Provincial Bank Ltd. v Ainsworth [1965] AC 1175. Pwlback Colliery Co. Ltd. v Woodman [1915] AC 634. Re Ellenborough Park [1956] Ch 131. Re Sharpe [1980] 1 WLR 219. Taylor Fashions v Liverpool Trustees [1982] QB 133. Tehidy Minerals v Norman [1971] 2 QB 528. Thomas v Sorrell [1673] Vaugh 330. Timmins v Moreland Street Property Co. [1958] Ch 110. Titchmarsh v Royston Water [1899] 1 LT 673. Union Lighterage Co. v London Graving Dock Co. [1902] 2 Ch. 557. Wheeldon v Burrows [1879] 12 ChD 31. Wright v Macadam [1949] 2 KB 173. Table of Statutes Land Registration Act 2002. Law of Property Act 1925. Limitation Act 1980. Prescription Act 1832. Read More