Ferns Cottage Land Law Issue - Essay Example

? Adelaide, property owner of Ferns Cottage since 1970, has every right to be upset about the changes the new property owner of the field adjacent toher property is going to make which will directly affect her use of the land. Although she is entitled to her feelings, there are legal considerations that Adelaide will have to abide to in her situation. Knowing what the law is, how it will affect her, and what she can do to protect herself will better prepare Adelaide in the next steps to take. We first have to understand terminology in the context it is presented in land law. A tenement is defined as ‘anything of a permanent nature that can be made the subject of feudal tenure’( Burdick, 4). The owner of the land in question is known as the dominant tenement of the land, and the person benefiting from other land, in this case, Adelaide, is known as the servient tenement (Law & Martin, 2009). The main subject of review in Adelaide’s situation has to do with easements and the ability to use these easements. An easement, according to the dictionary of law, is defined as a right of the owner to benefit from the other land (Burdick, 4). From a servient’s point of view, easements are the rights that one person has over someone else’s land (Thompson, 47). The Law of Property Act of 1925 outlines the four characteristics that define what an easement is. Documents relating to this act state that there must be a dominant and servient tenement (not possessed and occupied by one person), the easement must be for the benefit of the dominant tenement, the tenements must be owned or occupied by two different persons, and the easements have to be competent in developing the subject-matter of a grant (Legal easements, 187). These four criterions in the definition of an easement were outlined in the case of Re Ellenborough Park. The judge ruled in this case that the residents on the property could take pleasure in an easement because fulfilling all four characteristics gave them the right over the easement. In Adelaide’s situation, the easements, or the privileges that have been enjoyed by her, include the route to the highway, the shed she used to park her car, and the light that will be blocked from Adelaide’s windows (if the new owner builds a building overlooking her cottage (Burdick, 4)). Adelaide’s chances of winning the rights to these easements will be based on the evidence she has supporting the privileges that she has over the landowner’s field. Adelaide’s has the highest possibility of winning the easement over the short-cut route on the field. There are two ways that an easement can be obtained. An easement can either be given by an expressed or implied grant, or by prescription (Legal easements, 187). Adelaide’s most substantial argument would be to prove that she is entitled to these easements by prescription, defined by the courts as an easement obtained by showing a continual use of land over a long period of time (Dictionary of Law). According to The Handbook of the law of real property, easements by prescription can be granted if they are used for 20 years or more, set by the English Prescription Act passed in 1832 (Burdick, 411). In Adelaide’s case, she has a good chance of winning the right to the route across her field by prescription. The continuous use of this path gives her permission for this easement. Adelaide can prove continuous use by showing the well-worn ruts on the road that has developed over time by the act of her driving on it and as a result of this occurrence being on a regular basis. Adelaide has strong evidence to win this easement because it was known to the dominant owner that she had been using the path for a reasonable manner (to get to the freeway). This complies with the rights outlined for obtaining an easement by prescription (Burdick, 414). Also, this easement is visible, also another characteristic of easement by prescription (Burdick, 413). Adelaide has not been obstructing the pathway that she had been using, which would be in violation of having an easement over the route (Burdick, 414). In fact, she has been keeping the area groomed and maintained for her reasonable use, even though it is the responsibility of the dominant tenement to take care of repairs (Burdick 414). Also, after 40 years of using this road as a means of getting to the public highway would make Adelaide eligible for an ‘absolute and indefeasible right’ (Law & Martin, 2009). I would advise Adelaide to apply for a grant in writing from the courts in order to get a prescription grant over this easement. Just as easily, the owner of the dominant tenement can grant a deed of the easement over to Adelaide (Burdick 416), if it is made known that the easement is still for the benefit of the owner’s land. This easement by prescription is an easy win for Adelaide and could be used in negotiating with the new owner of the field to redefine the road to the highway. However, I would advise Adelaide that the new owner has a right to get a license to do work on his land that would allow him to take away the use of the easement all together. These rights extend to not only the easement of the pathway out of her property but to Adelaide’s use of the barn, shed, and light to her windows as well (Burdick 416-417). Adelaide may have an argument for and a possibility of winning light as an easement. Adelaide is arguing that by putting up the new building, Bob is obstructing light to the windows of her cottage. Colls v Home and Colonial Stores LTD (1904) gives Adelaide a good argument for light through her window as being a violation of her easement over it. This case talks about someone enjoying air for 20 years and claiming they are entitled to have an easement over it (Sexton 147-148). Although in Adelaide’s case it is light, not air we are talking about, the same concept applies. Adelaide is not entitled to the right of light, as Colls v Home and Colonial Stores LTD (1904) states, she may have a right to the light through a specific window. I would advise Adelaide that the judge could still come back and say that there is not enough evidence to argue that the building that was going to be built will result in less light for to Adelaide’s windows. If Adelaide could provide substantial evidence that the building will be close enough and the exact measurements will in fact block light through her window and prevent her from functioning in her daily activities, for example, then she could pursue this argument (Sexton 147). The judge could still come back with the decision that ‘light is the right of all to enjoy’ and she cannot claim that right as her own (Sexton 148). Adelaide could argue an absolute easement of light since this privilege has been enjoyed for over 20 years of use and could try to get a ‘lost modern grant’ by the court, under common law (Law & Martin, 2009). In the argument for the barn, Adelaide has little chance of winning the easement because of the addition of the padlocked door. We can think of this argument in terms of the free-for-all, jus spatiandi term, and meaning “a privilege of wandering at will, over all and every part of another’s field” (Sexton, 146). It appears that the old owner had no problem with Adelaide using the barn as a parking garage since last year. The action of putting on a padlock showed that the old owner, who had previously been fine with Adelaide using it, decided that at some point, last year, that he was not. The granting to Adelaide was ceased, therefore showing her that she did not have availability to that easement. The not being able to use the barn for use showed no benefit to the old owner, and therefore cannot be an easement for Adelaide (Sexton 145). The old owner could have easily shown that Adelaide’s parking in the barn prevented him from using it as storage, or was making him lose money as a direct cause of Adelaide’s car being parked in the barn. The new owner can argue that because the old owner declared that the padlocking of the barn doors meant that it was not a benefit to his land means that it should not be a privilege to Adelaide. Also, if Bob gets approval on the plans to build on the field, Adelaide will not be able to obtain the easement because the barn will be demolished. There is a matter of obiter dictum, Latin for “said by the way,” that could be used in court opinion, if there is not enough value or evidence in the case regarding to the barn used as a parking spot. For example, in the London and Blenheim Estates LTD v Ladbroke Retail Parks LTD shows that there could be an easement to park vehicles (Sexton, 144). The outcome of Copeland v Greenhalf revealed that parking easements are situational and dependent on the level of degree. If the large barn was the only place she could park her car then Adelaide might be able to fight for the easement (Sexton 149). It appears that Adelaide was parking in the shed for convenience and not out of necessity; therefore, the courts could argue that she should be parking in from of her cottage. Adelaide was also parking in the barn under the supposed permission of the landowner, but that was clearly not the case as of a year ago, since the owner had put a padlock on the door, indicating that he was not allowing it. This could be just enough evidence for the courts to take the privilege away. In regards to using the shed for work purposes Adelaide won’t be able to fight it as an easement. The storage for use of business can be supported by the case Hill v Tupper (1863). In the case, the Basingstoke Canal Company leased land as a boatyard. Hill, a renter of the boatyard, had a clause in his lease that gave him the sole right to put pleasure boats on the canal. Tupper, another renter also started putting boats on the land. Hill sued Tupper because he had it in his contract to only have pleasure boats on the canal and was hoping that he could get property rights (Sexton, 147). Hill lost because the benefit in question was going to Hill’s pleasure boat business and not for the ‘accommodation’ of the boatyard owner, outlined in the Property Act 1925. Similarly, if Adelaide would take legal action over the new owner over the rights of using the shed for business purposes, she would lose. One, we don’t know if Adelaide has a license, much less an agreement, with the old owner for using the shed for her engraver’s business, and second, the benefit would be going to Adelaide’s business and not the benefit for the new owner’s land, therefore the right would go to the new owner to demolish the shed, thus taking the rights away from Adelaide. If Adelaide did have a contract for the use of using the shed for business purposes, then she could sue the new buyer for breech of contract (Sexton, 147). There are a lot of questions and concerns with Adelaide’s shed that she keeps on the field to store the chemicals that she uses for her engraver’s work. Adelaide is in violation of the Storage of Engraver’s Chemical Regulations 1996. A bigger problem for her may be under the violations of the Environmental Protection act of 1990. Documents pertaining to the Environmental Protection Act of 1990 specifically say that anyone who keeps controlled waste, in this instance, Adelaide’s engraver material, on their property (Supplemental) has to do so in a proper manner (Duty of Care c 20). Adelaide’s surrounding shelter for the waste does not meet code, therefore she is in violation of this act. The act also states that the owner of the land that the shed is resting on is responsible for preventing persons from breaking this law (Collection, disposal or treatment of controlled waste). The landowner, therefore is also responsible and subject to the statures under this act, and would also, under this law, be subject to fine. The landowner, under this law, should have had Adelaide sign a contract that outlines the responsibilities that come with holding this waste on his land. This includes proper disposal, clean-up, pick up, if necessary, and obtaining and keeping up-to-date on environmental permits. Section F52A also says it is the duty of the occupier of a house in England or Wales to take these appropriate measures (Collection, disposal or treatment of controlled waste). According to these documents it is the responsibility of the person who has the environmental permit to make sure that authorized people properly pick up the waste. If neither is obeying, then both parties can be held liable. I would tell Adelaide to get a permit if she does not already have one, or else she could face a maximum fine. The permit will outline the size, the placement, and location in regards to picking up for disposal (Collection, disposal or treatment). This may work to Adelaide’s advantage if the permit says she must keep the receptacle, the shed in this case, a certain amount of distance from the road in order for the waste pick-up service to be able to access it. I would advise Adelaide that in addition to the fine for not having a permit, she might have to undergo consultation to come up with a new system that fits in the realm of the statutes (Collection, disposal or treatment). In the case of using these easements for Adelaide’s argument in the right to use them, it will ultimately be for the courts to decide. The evidence and arguments stated in the paper will give Adelaide a better understanding of what the law is, some court cases that have been used to argue and the cases that the courts have made decisions on relating to easements pertaining to Adelaide’s situation. I would advise Adelaide that the courts and the new owner could argue that there was an overextended power of use granted to Adelaide, outlined under the Property Act 1925. It could be argued that this overextended power of use was for only a certain amount of time. Bob, the new owner could argue that the power of use was terminated once title of the field was granted over to him. The courts might rule in the favor of the new owner, arguing that the power of use was for the length of time that the old owner had rights to the field. The courts could argue that the old owner just never exercised his rights over the easements. The best advice that I can give to Adelaide is to keep in mind that easements are for the benefit of the land and to work on providing substantial evidence for her case. The true case lies in deciding whether or not the easements can be proved to be binding privileges for Adelaide. References William Livesey Burdick. (1914). Handbook of the law of real property. West Publishing Co., St. Paul, MN (p. 4, 411 Jonathan Law and Elizabeth A. Martin. (2009). A dictionary of law (7th ed). Oxford University Press. Oxford Reference Online [Accessed 1/15/11] [http://www.oxfordreference.com.libaccess.sjlibrary.org/views/BOOK_SEARCH.html?subview=BookHomePage&book=t49] Miscellaneous Legal easements. 1991 (187) [Electronic Records] Law of Property Act 1925. The UK Statute Law Database. Record Group c.20; The Office of Public Sector Information. Retrieved 1/14/11 Roger Sexton. (2006). Land Law Textbook (2nd ed). Oxford; New York: Oxford University Press (pp. 144-148). Mark P. Thompson. (2009). Modern Land Law. Oxford, New York: Oxford University Press (p 497). Waste on Land: Duty of Care etc. as respects waste. 1990 (34) [Electronic Records]; Environmental Protection Act 1990. Records of the UK Legislation, Record Group c. 43; The National Archives on behalf of HM Government and HMSO. http://www.legislation.gov.uk/ukpga/1990/43/contents Waste on Land: Collection, disposal or treatment of controlled waste. 1990 (45, 46, 59) [Electronic Records] Environmental Protection Act 1990. Records of the UK Legislation, Record Group c. 43; The National Archives on behalf of HM Government and HMSO. http://www.legislation.gov.uk/ukpga/1990/43/contents Waste on Land: Supplemental. 1990 (75) [Electronic Records] Environmental Protection Act 1990. Records of the UK Legislation, Record Group c. 43; The National Archives on behalf of HM Government and HMSO. http://www.legislation.gov.uk/ukpga/1990/43/contents Read More