Land Law: Adelaide - Case Study Example

?Land Law: Adelaide In the UK, the matter of easement is governed by the Land Registration Act 2002, which became effective in 2003, and the previousLaw of Property Act 1925. Easement is defined as a right enjoyed by a landowner over a land, usually one in close proximity to his or hers, owned by another. Easements are classified as positive or negative. Positive easements include right-of-way, right of access and right to use a portion of another’s property whilst negative easements include easement of light and view, easement to drain water, among others. In easement, the interplay of the terms ‘dominant’ and ‘servient’ tenements is most significant as they form the essential requirements of easements. For example, there is no easement without the existence of a dominant tenement which is to benefit from its use of the servient tenement, both of which must be owned by different persons or entities. 1 In this paper, both positive and negative easements are discussed: easement of access, and; easement of light and view. Adelaide, the owner of the dominant estate, or the estate which is benefitting from the easements, is being faced with the potential loss of their enjoyment after benefiting from them for more than twenty years as Bob, the new owner of the servient estate, plans to demolish certain structures to pave the way for the construction of a new building. A. Right-of-Way Adelaide can bring an action in court to prevent Bob from building over the area that she used for more than 20 years as a shortcut to the highway. Having used the same for that length of time, Adelaide has acquired a prescriptive easement of right of way over it. One of the problems that Adelaide now faces as a result of the transfer of ownership of the field adjacent to Ferns Cottage is the possibility that she can no longer use the field as a shortcut to the public highway. The use by Adelaide of the field in that particular manner is termed easement of right-of-way, which is the right of the owner or inhabitant of a dominant estate to travel across the land of the servient estate. The first issue to be determined in the problem at hand is whether Adelaide, owner of Ferns Cottage, the dominant estate being the estate that benefits from the use of the other property called the servient estate, has established a right of way over the adjacent field which is recognisable and enforceable under the law. According to Re Ellenborough Park,2 easement is valid if the following elements are present: existence of a dominant and servient estate; the accommodation of the dominant estate by the servient estate; the tenements, dominant and servient, must be owned by different persons or entities, and; the right over land must be capable of forming a subject matter of a grant. The problem at hand meets all of the above requirements, with Ferns Cottage serving as the dominant estate and the adjacent field as servient estate accommodating the former. Adelaide owns the former whilst the field was owned by another and now owned by Bob. Moreover, the use of the adjacent field serves a practical use for Adelaide and not merely for recreational purposes as it allows her a shorter access to the public highway. In Re Ellenborough Park,3 it was mentioned that recreational rights over lands that do not constitute as accommodation to the dominant tenement are not classifiable as easement. It is evident from a recital of the facts in the herein problem that the use by Adelaide of the field is not recreational in the first place and therefore, can be made subject to easement. The underpinning for the fourth requirement is threefold: deterring whimsical and personal benefits from becoming easements; encouraging clarity through specificity, and; ensuring a degree of link to land.4 Having established that Adelaide’s use of the field as a shortcut to the highway is a proper subject of easement, the question remains, however, if Adelaide has actually established a valid case of easement over the adjacent land. At this point, it is important to classify the kinds of easement into the following: easement created by statute; express grant or reservation; implied grant or reservation, and; prescription. Evidently, the right, if at all, that Adelaide has over land is not statutory in origin or express, as the problem is silent on the matter. On the other hand, the elements of easement by implied grant or reservation were established in the case of Wheeldon v Burrows.5 In that case, the owner of several parcels of land eventually one of the vacant parcels abutted to its rear by another land with a silk factory and workshops on it whose windows directly open to the vacant lot. The lot with the factory and workshops on it was likewise eventually sold to another person. The vacant lot owner eventually constructed a structure that blocked the windows of the factory preventing light from entering the building. The factory owner took the case to court citing implied grant of easement to light when he bought the lot. This was rejected by the Court on the ground that there was no reservation of the right when the vacant lot’s ownership was transferred and that it did not constitute an easement of necessity. In the process, those two rules on implied grant of easement were established by the Court and were later incorporated into the Law of Property Act 1925.6 The law on easement of light has changed since then, but the case is still used as a rule of thumb in implied grant cases. It is evident that Adelaide’s case does not contemplate the situation in the Wheeldon case considering that the ownership of Ferns Cottage and the adjacent field had never been previously consolidated in one person or entity, which leaves easement by prescription as the only possible method applicable in this case. The case of Dalton v Angus7 established the elements of easement by prescription: open and unathorised use of the land of another; knowledge of the owner of the servient tenement of its use by another; the legal power of the servient owner to prevent and put to a stop the use of the servient estate by the dominant estate; competence of both owners (dominant and servient) to grant and receive grant; the lawfulness of the grant had a grant of easement been made by the owner of the servient estate, and; restraint by the owner of the servient estate of the use of his power to stop the owner of the dominant estate from using his land. The case at hand, does not give details as to whether the owner of the field has knowledge of Adelaide’s use of it, but it is impossible that he or she does not have any knowledge considering that Adelaide has been using it since 1970 and has been parking her car in the barn located therein. Moreover, there are three perspectives by which easement by prescription can be claimed: at common law; by lost modern grant, and; by statute. Prescription by common law is considered obsolete because of the time requirement, which dates back to 1189. On the other hand, a claim by lost modern grant requires only a 20 year period of exercise of use over the servient estate by the dominant owner. Tehidy Minerals Ltd v Norman8 states that the courts, by legal fiction, will assume a grant of easement to the owner of a dominant estate that has used the servient estate uninterrupted for 20 years or more unless there is evidence to prove impossibility of the grant such as due, for example, to incapacity on the part of the servient estate owner prior to the commencement of the 20 year period. Applying this to the case at bar, it can be presumed that Adelaide has been granted easement by the owner of the field considering that she has used the field as a shortcut for 40 years, which is more than 20 years, without the dominant estate owner exercising his or her right to prevent her from doing so. Finally, prescription by statute is governed by Prescription Act 1832, which provides for short and long prescriptions. Short prescription applies to users of servient estates for 20 years or more, but the right is only inchoate and is only consolidated once the right is called in issue in a court proceeding and the dominant estate owner successfully establishes his or her right over it. On the other hand, long prescription applies to users of servient estates for 40 years or more and in this case, the right is deemed absolute and indefensible upon reaching the required period. However, as with short prescription the right is inchoate until a legal action is filed and the issue comes up. In the case at bar, Adelaide has used the field as a shortcut for more than 30 years, which should qualify her for short prescription under the Prescription Act 1832. Adelaide must therefore file the proper case in court, e.g. injunction, to object to Bob’s plan to build a structure over the field which will obstruct her route out to the highway. In such an event, she will have to prove that she has used the same for more than 20 years before she brought the action. B. Right to Park in the Barn/Store Chemicals in the Shed The right of Adelaide to park in the barn cannot override the right of Bob to demolish the barn for the purpose of developing the entire area. Although the right to park in a servient estate can constitute an easement, such kind of easement even if proven established is not absolute and unlimited. In London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd,9 for example, the Court held that to constitute an easement, the right to park must not unreasonably deprive the owner of the servient estate from its use. Likewise, in Batchelor v Marlow & Anor10 the Court struck down a lower court decision sustaining a claim for easement of parking by the claimant who asserted that he had established an exclusive right of easement by prescription to park six cars during weekdays at certain periods of the day. The Court held that the claim was too extensive as to amount to easement. In the present case, it would be very unjust for the court to prevent Bob from demolishing the barn to give way to a newer and more modern structure to raise the value of the land and make it more useful to him. It can be concluded that the right to park does not enjoy absolute judicial deference and does not necessarily equate to an easement unless it does not unnecessarily burden the owner of the servient estate or unless it is crucial to the enjoyment of the owner of the dominant estate of his property as was the case in Moncrieff v Jamieson.11 In that Scottish case that eventually came to be reviewed by the House of Lords, the dominant estate was located at the bottom of a slope and accessible by foot only by through the servient estate. Although a right of way was already granted to the owner of the dominant estate, a right to park in the servient estate was not. The Court ruled that without the right to park, the enjoyment by the owner of the dominant estate of his property is not complete. The use of Adelaide of a shed in the field to store her chemicals in violation of the law on engravers’ chemical storage constitutes an excessive burden on the dominant land and is therefore not permissible notwithstanding that she has used it as such for more than 35 years. Moreover, there is doubt as to whether the subject matter can be made subject to an easement grant considering that to do so would allow an illegality to take place over the servient land. Allowing the use of shed although it has not met the requirements of the law exposes to the dominant property to danger and is therefore not permissible. In the case of RPC Holdings Ltd v Rogers12 the Court ruled that any easement established by the dominant estate over a servient estate is abolished the moment the use by the latter on the former has so altered as to prejudice the servient estate. This rule is incorporated in the so-called McAdams Homes Test13 that determines whether an easement is lost or suspended in certain cases and was established in the case of McAdams Homes Ltd v Robinson.14 The Test consists of two limbs where either a drastic change in the dominant estate or in the servient estate effects to create a heavier burden on the servient estate that results in its prejudice can be made a basis to suspend or abolish an easement over said servient estate. C. Easement of Light/Easement of View The easement of light is a negative easement as opposed to the easement of right of way, which is a positive easement. Negative easements are those that prevent the servient estate from impeding or obstructing the “flow of ecosystem services” to the dominant estate. They could take the form of, under English law: blocking windows; obstructing air flow; removing artificial building support, and; impeding water flow in an artificial channel.15 Negative easements are limited in that the court does not welcome new kinds to be created by prescription largely limiting them to the aforecited four kinds. The rationale for this is the avoidance of uncertainty in the use of property by all sorts of prohibitions that claimants of prescriptive negative easements may level against land owners. 16 Adelaide can contest the construction of the building on the ground that it will block the light from entering her window. According to the Prescription Act of 1832, the owner of a dominant estate who has enjoyed access to light from the servient estate for an uninterrupted period of 20 years has consolidated her right to that easement in an absolute and indefeasible manner. Such right is not even presumed granted implying that the incapability of the owner of the servient estate is no defence. The only exception to this is when the easement of light is expressly granted by the servient tenement owner to the owner of the dominant estate in writing. 17 In line with this, the Rights of Light Act 1959 allows the registration by the owner of the servient estate of a notice of obstruction of access light with the local authority. In the case at hand, the dominant estate has already acquired a right of easement of light considering that from 1975 at least, Adelaide has been enjoying uninterrupted access to it unimpeded by the servient estate. Since this was not expressly granted in writing, the right acquired is absolute and indefeasible. Hence, she can validly object to Bob’s construction of a structure in the servient estate that will have the effect of obstructing her enjoyment of light. References: Batchelor v Marlow & Anor [2001] EWCA Civ 1051. Bouckaert, B. (2010). Property Law and Economics. Edward Elgar Publishing. Dalton v Angus [1881] 6 App Cas 740. Hepburn, S. (2001). Principles of Property Law. 2nd Edn. Routledge. Land Registration Act 2002. Law of Property Act 1925. London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 1 All ER 307. McAdams Homes Ltd v Robinson [2004] EWCA Civ 214. Moncrieff v Jamieson [2007] UKHL 42. Prescription Act of 1832. Re Ellenborough Park [1956] Ch 131. Rights of Light Act 1959. RPC Holdings Ltd v Rogers [1953] 1 All ER 1029. Ruhl, JB & Kraft, S. & Lant, CL. (2007). The Law and Policy of Ecosystem Services. Island Press. Tehidy Minerals Ltd v Norman [1971] 2 QB 528. The Law Commission, (2008). Consultation Paper No 186: Easements, Covenants and Profits A Prendre. http://www.lawcom.gov.uk/docs/cp186.pdf. Wheeldon v Burrows [1879] LR 12 Ch D 31. Read More