Law Relating to Leaseholds: Rights of the Lessee - Case Study Example

Law relating to Leaseholds Rights of the Lessee We have been approached by Mr & Mrs Tramp to advise them in respect of three issues arising from and affecting their business and it’s premises, advice given by professional persons and activities in the local that they consider to be detrimental. The specifics of their complaints relate to a) an easement, the fulfilment of which is presenting a detrimental image and a nuisance for their business; b) a noise nuisance from aircraft, which they had been professionally informed would not be a problem and c) a farming neighbour problem resulting from their keeping of animals, namely the smell emanating from the farmyard at certain times. We have investigated the situation regarding each of these situations and conducted the necessary research. We have concluded that there are issues within all of the areas outlined that Mr and Mrs Tramp could take action on and seek redress for. Law relating to Leaseholds Rights of the Lessee The purpose of this report is to firstly ascertain the relevant facts in each of the three instances outlined below and, after conducting research both into case study’s and other documentation, formulate an opinion from which we can put forward considered advice to the parties concerned, Mr and Mrs Tramp. 1) Issues regarding Easements with Mr Prebble. On 1st October 2005, Mr & Mrs Tramp signed a 25-year lease and took possession of a property in West Sussex. Incorporated within the lease was what is known as an easement (a right), the content of which entitled Mr Prebble, a taxidermist, to park a vehicle in a marked parking space in front of the Tramp’s cottage property for 50 years. However, Mr & Mrs Tramp are unhappy with the way the easement is being used. They contend that Mr Prebble parks a scruffy blue van in the space and that sometimes it is filled with dead animals, causing an unpleasant smell. To advise upon this position and the possibility of redress, we first need to understand the law as it applies to easements. There are three types of easements. 1) Express, which means by deed. This must be signed by all parties and registered to make it legal. This easement does not fall into this category. 2) Implied. In this instance the easement in favour of Mr Prebbles could have been elevated under section 62 of Law of Property Act 1925 (62 LPA 1925). However there are areas here where the easement that Mr Prebble enjoys does not meet the criteria. a) Easements must be a necessity, be landlocked. That is not proven in this case. b) Must have common intention. Again this is not proven. c) Must have been used at the time of the grant. We do not have all the facts to be able to ascertain whether this situation meets the criteria. Therefore at this stage we cannot confirm this condition to be met. 3) Prescription, which has been acquired by long use, twelve years plus, which this clearly has not, having only been in existence since 2001. Whilst normally associated with right of way, an easement can exist for other purposes, such as in this case car parking. It is an agreement that exists between the landowner (Dominant tenement) and a third party (servient tenement), in this case Mr Prebble. The easement would automatically pass on to any tenant who occupies the land, hence the reason for it becoming part of the lease agreement that Mr and Mrs Tramp signed. The nature of easements was first identified by G.C. Cheshire (1925). He outlined the following essential criteria for proof that such an easement. These steps were later given judicial substance (see Ellenborough Park [1956] Ch 131). Criterion 1. Has to be attached and the land has to be 2 pieces for there to be an easement. There is insufficient evidence within the question posed and evidence to hand, to categorically decide whether the easement falls within this criterion. All we are aware of is that Mr Prebble lives in a nearby village. We can only assume at this stage that it attaches to the land in the village where Mr Prebble lives. Criterion 2. There must be a dominant and a servient tenement The right in this situation relates specifically to these two parties and no others, unlike a public footpath, which would be considered an easement in, gross, as there is no identifiable dominant tenement. By virtue of the fact that Mr & Mrs Tramp own the property and the ones allowing the right, and Mr Prebble is the person benefiting from the right, they therefore fulfil the conditions as servient and dominant tenements respectively. Criterion 3. An easement must accommodate the dominant tenement. This main part of this criterion relates to vicinity. As explained in the case of Bailey v Stephens (1862) 12 CB(NS) 91, one cannot hold ‘a right of way over land in Kent appurtenant to an estate in Northumberland’. (Ellenborough Park (1956) Ch 131). At this stage we cannot agree that this criterion has been met. Secondly, it does not stand if the use is for personal benefit only. (Hill v Tucker). In this case it is only for Mr Prebble’s business use. Criterion 3.The dominant and the servient tenement must be owned by different persons. In other words a person or peoples cannot have an easement over property which they themselves own, not least because this would cause a vast number of easements over property and could have the effect of affecting its commercial value. Criterion 4. The right claimed must be capable of forming the subject matter of a grant. In many respects, this criterion is vague. However, it does state that there must be a grantor and grantee. It also specifies that to satisfy the criterion the right must be definable and able to be specified. For example in Levet v Gas Light and Coke Co (1919) 1 Ch 24, it was held that “A right to light through a specifically defined channel may be an easement whereas a general right to light is not.” Thirdly, the nature of the easement must have been used before and should not involve the servient tenement in any cost. The easement does meet the above conditions. This section also notes that the easement cannot deny the servient from possession. In other words there must be more than one parking space. As Joe Maynard (2005) explains that if this could not be seen as situation it would eventually exclude the “rightful owner” from that part of the land. However to achieve this Mr Prebble would need to have taken advantage of the easement for a period of twelve years. At this present moment in time, the easement has only been in existence for just over five years. Another aspect of easements is that the law was amended in 2002 and easements are now required to be registered especially if, as is the case with 50 years being this easement, there is a term of years identified. It has been suggested in this case that the easement might not exist legally because there is not “continuous” use. The question here is definition. The case of Davies v Du Paver [1953] 1 QB 184, ruled that this would only succeed if the dominant tenement had not used the right for a period of one year, therefore this suggestion does not hold merit, see also Gray and Gray (2004) Result Issue of Easement a. The condition of the vehicle parked, assuming it is legally roadworthy, does not affect the easement in any manner. b. Referring to the fact that the vehicle is parked several times a week does, in our view this represents continued use. Our research finds that the law does not define continual use as needing to be a daily occurrence. c. The smell emanating from dead animals carried in the van and, presumably, left in it when parked, could, based on the assumption that Mr Prebble’s business premises are not immediately adjacent to the Tramp’s property, contribute to an offence under the Environmental Protection Act 1990. d. Mr and Mrs Tramp could apply to have the easement with the following proviso. i. Express release – Needs consent of Mr Prebble – unlikely ii. Implied release – Mr Prebble needs to tell them that he no longer wishes to use the easement – again unlikely. e. Mr and Mrs Tramp could seek to have the easement challenged on the basis of the various comments we have made to the sections above. 2) Issues regarding DTP1 advice. Prior to purchasing the lease, Mr & Mrs Tramp paid for a professional survey on the property to ascertain its condition. A few days after the surveyor had attended Mrs Tramp held a conversation with him and he agreed that his report would also consider whether the property would be affected by aircraft noise from Gatwick Airport, 5 miles distance. Mrs Tramp also indicated to the surveyor that she is particularly sensitive to noise. DTP’s report did mention the noise issue, concluding that it would not present a problem, as the Tramp’s property was not in the main flight path. However, subsequent to moving in the Tramp’s were affected by aircraft noise, some days up to 10 to 12 times an hour. However, the noise was occasional, when aircraft were stacking awaiting a landing slot and the wind blew from an easterly direction. There are two parts to this issue, a) whether DTP did enter into a contract with Mr and Mrs Tramp and b) Whether they conducted that part of the contract with sufficient duty of care. What recourse do those same lessees have to seek redress from a professional who, in their view, incorrectly advised then on a matter of noise pollution relating to the same property? a) The existence of a contract. The inclusion of “aircraft noise” as an issue did not form part of the original contract for service. It was a subsequent oral agreement. It should be noted that ‘Oral’ contracts are just as enforceable as written ones, the problem normally being that of proving their existence. In this particular case, one can deduce, by the fact of the comments within the report referring to aircraft noise that such a contract has been proven to exist. Therefore in our opinion there is no doubt that a contract was in existence. b) Duty of Care. DTP were employed by the Tramp’s for their professional expertise and advice. As such Mr and Mrs Tramp were their client and could expect, even deserve, best advice. The case, Hedly Byrne. Comparo industries V dictman deals with executing ones duties with care. It is a matter of defining what that duty, whether it had been breached and what are the remedies and damages? In this particular care, assuming that Mrs Tramp informed DTP that this was a significant issue for them, there was clearly a professional duty of care when reporting on the issue of “aircraft noise”. The point at issue is whether he failed to reach the standard of duty that was to be expected of him. As previous stated here, the report did comment on the issue of Gatwick, by stating, with no conditions attached, that there was not a problem. Bearing in mind the time at which the noise occurred the surveyor may argue that it was unreasonable for him to have been expected to pick it up. There is the additional fact that error of judgement not necessarily being regarded as Negligence. (White House v Jordan) To pursue a claim for negligence there are areas of proof necessary. a) is the defendant in a better position than the defendant to know the facts and b) whether Mr Proudfoot can assume responsibility for giving the advice. In addition, Mrs Tramp would need to prove actual loss caused by the breach. The only point we would make is that, if it was a local firm of surveyors, there is the question as to whether they should have known about the “aircraft stacking” system. The other aspect to this issue is the noise itself. This issue comes under the provision of the Human Rights Act. (UK Section 6 H.R.A). The act states that it is unlawful for a public authority to breach the convention of Human Rights. Gatwick, or organisation that runs the airport could be considered to be such an authority and victims of an unlawful act have a right to bring proceedings against such an authority. Mrs Tramp would be such a victim. She has what is known as Locus Standi2. There has possibly been a breach of article 8 paragraph 2, however there are limitations and restrictions. There will be three questions answerable to the satisfaction of the court. 1) Is the government being fair in terms of the noise? 2) Are the aims of the limitation conducive with the aims of the article? 3) In a democratic society is it necessary. There has in fact been a precedent in this area, Hatton and Others v UK government. This was a case bought by Heathrow residents against the government. The outcome was that it was judged that the government was in breach because it failed to prove its case in terms of economic well-being of the country. Result Advice given by DTP. a) There is a clear case here that there was an oral agreement reached between Mrs Tramp and the surveyor. This is confirmed by the comment contained within the final report submitted, where it mentions specifically “aircraft noise”. b) We find that it may be difficult to pursue a claim against DTP. In the event that this were to be considered, Mrs Tramp needs to be sure that she can prove her actual loss arising as well as being able to, because the issue of occasional noise arising from the need to create a stacking system in time of heavy air traffic, the surveyor failed in his duty of care to Mr and Mrs Tramp. c) In view of the precedence of the Heathrow case it is possible that Mrs Tramp could bring an action against the public authority/government. 3) Issues regarding farmer Ma Fews. In December 2005, the farm next door to the property was sold to Ma Fews who is a major poultry and pig breeder. This issue relates to the smells that are emitted from a farm, which is located only 200 yards from the property owned by Mr and Mrs Tramp. It appears to get worse during spring and summer when the doors to the animal house are open and the wind is in a south-westerly direction. There is the additional problem of differing opinions. Mrs Tramp finds the smells offensive and, as she has stated, she is sensitive to smell. On the other hand, Ma Fews, finds the smells “Bootiful” (sic). In this situation our research indicates that this is a matter that could be initially dealt with under the Environmental Protection Act 1990, which sets out the conditions relating to matters of nuisance, including those of emission, the aspect that would relate to smell. It should be mentioned that there is a possibility that the extent of the smells could be partly caused by the waste management system at the farm. Here again there are rules and regulations, which relate to this particular area of concern. Mr and Mrs Tramp could have an action for nuisance. Private nuisance have been defined in the case of Read v Lyons. The following conditions need to be satisfied. a. The plaintiff must have a legal interest in the land, which Mrs Tramp clearly does as she owns a lease. b. Who is there to sue? The creator of the nuisance (Thomas v Num). In this case Ma Fews actions caused the nuisance. For the claim itself to proceed, the establishment of two parts must happen. 1. Damage. Mrs Tramp must show that her enjoyment of the property and land has been damaged. The fumes would provide such evidence. (St Helens Smelting Co v Tipping) 2. Unlawful Interference. Need to show the act to be unlawful. 5 factors govern this a. Type of Neighbourhood. It is a farming area, thus this would not benefit the Tramps case. b. The duration – It has to be more than a one-off occurrence. (Bolton v Stone) It has to be borne in mind here that the nuisance only occurs when the wind is in a south-westerly direction. c. Is it reasonable to be affected? Mrs Tramp has admitted that she is particularly sensitive to smells and farmyard smells in particular, but would a normal person be upset. d. If she passes these tests then she would be able to claim. However the defendant may seek to prove that. e. The activity was for the public benefit (Dennis v MOD). Can farming benefit the public? f. Malice? Is there evidence that points to the nuisance being caused just to annoy the claimant? Has it been proven that that was Mrs Fews intention? However, what Mr and Mrs Tramp do have to bear in mind is that they voluntarily took a lease in a rural area and, presumably were aware at the time of purchasing the lease that the neighbouring property was a farm. Therefore, they would be expected to appreciate to understand that the smells within the area would not be the same as those in a residential area. Results Neighbour problems relating to Ma Fews. f. If Mr and Mrs Tramp consider the smells from the neighbouring farm constitute a nuisance of smell, then their action should be firstly to contact the local environmental office. g. On office of the environmental will visit both the farm and Mr and Mrs Tramps property to investigate the allegations. If it is proven then the farmer will be issued with a notice informing them what they the exact steps they should take to deal with the problem and giving them a timescale in which to complete such action. h. In the event that Ms Fews does not comply with the terms set down by the environmental office, such conditions can be enforced under the Environmental Protection Act 1990. i. Mr and Mrs Tramp may be able to seek redress through the civil courts for a case of Private Nuisance. Discussions Thus, in conclusion, we have found that, subject to the circumstances being true, there are legal areas that Mr and Mrs Tramp have recourse to in terms of seeking both to resolve the problems that they find themselves faced with, and / or seek redress for damages caused to them, the enjoyment of their property and business and the advices given, together with the breaches committed by certain parties. We would therefore recommend that, once they have all the facts and further evidence in their possession, they seek professional legal advice in order to proceed with the matters further. One area that should be looked at is what, if any, legal advice they sought prior to entering into the lease in the first place. If such advice was sought, it needs to be ascertained the extent of the contract with that legal advisor, as there may be an issue with duty of care in that instance as well. References Cheshire, G.C. (reprint 1976). Modern Law of Real Property. Butterworth & Co. Environmental Protection Act 1990. http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900043_en_1.htm Gale, Charles James. (1925) A treatise on the law of easements. Sweet and Maxwell. Gray, Kevin J and Gray, Susan Francis. (2004) Elements of Land Law, Pg 458. LexisNexis. UK Maynard, Joe (2005). Rights of way. http://www.boundary-problems.co.uk/ Sara, Colin. (1991). Boundaries and Easements. Sweet and Maxwell Ltd. UK, p 185, 189 Sinclair, Roger (1997). Legal Article, Freelance Informer at http://www.egos.co.uk/Freelanc/freela26.htm Read More