PROPERTY LAW

EASEMENTS
PROBLEM QUESTION

Question-1
In 1993, Gerald, the owner of three adjacent terraced houses, title to which was
registered, decided to realise some capital and resolved to sell two of his
properties whilst remaining in the third. In the conveyance of No 20 to Frank,
Gerald promised to allow Frank to park his 20-foot horsebox in his (Gerald’s)
garden, in return for which Frank allowed Gerald to site a satellite dish on his
(Frank’s) roof. Gerald also agreed orally that Frank could hang a small sign
advertising his horsebox building business (which was based on an industrial
estate some five miles away) on his end wall. When negotiating a sale of No 22 to
Ivor, the latter insisted that he be given the right to temporarily store some
roofing materials in Gerald’s garden (next to the horsebox), should he run out of
space in his yard opposite. This was agreed in the conveyance. Gerald has just
sold his house (No 21) to Ben, who is unhappy with the elaborate sign that Frank
had erected and with the horsebox taking up most of his garden. Frank, however,
has just retired and sold his business, the horsebox and house to Christine, who
is threatening to remove the satellite dish unless the horsebox and the sign are
allowed to stay. Meanwhile, Ivor has been storing materials on a permanent basis
in the garden of No 21, and Ben decides to remove them.
Discuss.

Ans: This issue relates to the acquisition of easements and how they affect those who
subsequently own the servient and dominant lands. Prior to determining their impact on
a potential buyer of the dominant or servient tenement, as the case may be, it is
required to first evaluate if the alleged rights are capable of existing as easements, then
whether any such easement already exists is lawful or equitable.

(a) Gerald, Frank and the Sales of Both Houses

Three rights in this case are claimed to be easements: the installation of the satellite
dish in Gerald's favor, the parking of the caravan, and the installation of the sign in
Frank's favor on Gerald's property. According to Ashburn Anstalt v. Arnold (1989), if
they don't amount to easements, they will be personal licences between the original
parties and won't be binding on successors in title. There are two properties that might
be the dominant and servient tenements, and both tenements are not owned or
occupied by the same person, thus it is clear that there is a capable grantor and grantee
with regard to all the rights (1956). Yet, it may be challenging to establish how the
purported rights benefit the dominating tenement as a whole and whether they belong
under the broad category of rights that can be converted into easements.

(i) The Erection of the Satellite Dish

Similar to how the easement to run telephone lines over neighboring land was accepted
in Lancashire and Cheshire Telephone Exchange Co v. Manchester Overseers, it is
quite likely that such a privilege benefits the dominant tenement (1885). The right is
sufficiently clear and does not require the servient owner to spend any money or to
occupy his space exclusively. It appears to meet the requirements for an easement.

Furthermore, it is abundantly obvious from the evidence that Gerald explicitly reserved
the right when he sold the house to Frank. So, there is no issue with its establishment,
and as it is expressly reserved in a conveyance (i.e., a transfer by deed), this is an
easement that is recognized by law. The easement would have been registered against
Frank's title when he became the registered proprietor because this is registered land
and it was formed explicitly. If it weren't, it would have been an overriding interest under
section 70(1)(a) of the LRA 1925 (in effect at the time), and under the Land Registration
Act of 2002, such rights are "maintained" as interests which override, automatically tying
the servient land in (Sched 12, para 9 to the LRA 2002). So, Christine is required to put
the easement authorizing the construction of the satellite dish into effect in either
scenario. Finally, it should be noted that when Gerald transfers the dominant tenement
to Ben, Ben also receives the benefit of the easement under the general rule that an
easement's benefits get annexed to all of the dominant tenement's legal estate and
pass along with it.

(ii) Can Frank (and then Christine) Claim an Easement of Parking of the Horsebox?
The proprietors of the allegedly dominant tenement face challenges as a result of this
specific claim. In accordance with the cases of Moncrieff v. Jamieson (2008) and
London and Blenheim Estates v. Ladbroke (1994), there is no question that a parking
easement exists. It is debatable whether a right to park in a designated area may be
considered an easement because it is also obvious that easements generally cannot
amount to the exclusive use of the servient land (Copeland v. Greenhalf (1952)).
Undoubtedly, a right to park many cars can exist (R Square Property's v. Nissan Motors
(2014)), but a right to store many cars cannot (Batchelor v. Marlowe, 2003). All things
considered, but only all things considered, it appears that this privilege only entails a
personal permission between Frank and Gerald, or a contractual license. So, even
though Christine has received the benefit of this contract, the putative servient
tenement's purported successor in title cannot be bound by its burden (Ashburn Anstalt
v Arnold). Ben won't be restrained.

iii) The Sign

Without a doubt, placing a sign on a neighbor's property can constitute an easement:
Moody v. Steggles (1879). It doesn't matter if something is being done to promote a
commercial operation taking place on the property as long as it is closely related to the
property and not a "pure" business endeavor (Hill v. Tupper, 1863). Furthermore, there
is no general opposition to granting an easement to a landowner in conjunction with the
transfer of property X (the house), as long as the easement will benefit property Y. (the
horsebox factory). After all, easements can be established by deed between landowners
without regard to any sales, just like when a freeholder offers a neighbor a right of way.

But every easement must take into account the dominant tenement, and in this case,
the business was conducted on property about five miles away when the land was sold
to Frank. The dominating and servient tenements must be close to one another, albeit
they do not have to be (Pugh v. Savage, 1970). In each situation, this will be a question
of fact. Even though the right might be able to exist as an easement, there is still a
problem with how it would be created. There is not an instance of an inferred grant
(there is no requirement, minimal evidence of a shared intention, no claim under s. 62,
and no quasi-easement within the meaning of Wheeldon v. Burrows (1879)) and, in any
case, the parties appear to have intended to expressly grant the easement. Additionally,
since the intended right isn't explicitly included in the transfer to Frank, it cannot be
legitimate because it wasn't done by deed, according to what we're told (more
accurately, not by registered disposition, as this is registered land).

Easements may, of course, be expressly given by other means (presuming the

necessary formality), but in that case they will only be equitable. According to Walsh v.
Lonsdale (1882), an easement must have been granted by a specifically enforceable,
legal contract in order for it to be considered equitable. However, the "contract" in
question is not in writing, as required by section two of the Law of Property
(Miscellaneous Provisions) Act 1989. The final option is that Frank can assert a private
estoppel easement claim in accordance with Joyce v. Epsom & Ewell (2012). We are
informed that Frank erects a complex (and possibly expensive?) sign because it
appears that a commitment has been made. This reliance might be harmful.

Additionally, although Thorner v. Major (2009) challenges this, it is not an argument

against the existence of an estoppel because it did in fact result from a broken explicit
bargain (Flowermix v. Site Developments, 2000). If an estoppel is proven, Christine will
have benefited from it as a result of the usual law that it is attached to the land. Due to
the ruling in Celsteel v. Alton (1985) (followed by Thatcher v. Douglas (1995)) and the
then-applicable Land Registration Act 1925 (s. 70(1)(a)), Ben, the buyer of the servient
tenement, would be obligated to abide by the estoppel easement as an overriding
interest.

(b) Gerald, Ivor, the Roofing Materials and Ben

Again, the law will determine whether the right to store can be an easement. We are
informed that in this case, the privilege specifically granted was a right to store
temporarily when the need should arise. But it must not amount to exclusive use of the
servient tenement (Copeland v. Greenhalf; Batchelor v. Marlowe). There are a variety of
easements that, when used by the dominant tenement owner on the servient land,
preclude any other uses by the servient owner (for example, the right to use a restroom:
Miller v Emcer Products (1956)). According to one theory, the right of temporary storage
is comparable to the general right to park on property, and in any case, the AG of
Southern Nigeria v. John Holt and Co. case recognized the right to store trade produce
as an easement (1915). So, it is debatable whether this qualifies as an easement. If it
does, it appears that Ivor is deviating from its clear provisions, which can obviously be
stopped by an injunction.

Lastly, if an easement does exist, it is obvious that it was formed legally and expressly
by the conveyance (i.e., by deed or registered disposition). This will bind Ben, the buyer
of the servient tenement, just as the legal easements discussed above, whether it is
registered against his title or an overriding interest under Section 70(1)(a) of the LRA
1925, which is still valid due to the transitional provisions of the LRA 2002.
Question-2
In 2005, John became the registered leasehold proprietor of No 35 Main Street.
Title to this property included the alleyway between No 35 and No 37. Alan was
the registered leasehold proprietor of No 37 and he accessed the upper floor of
No 37 by a staircase that he had installed in the alleyway following a written
agreement with John. In 2008 John sold No 35 to Bob. In 2009, Alan granted a
lease of the first floor of No 37 to Claire and Claire was duly registered proprietor
of the leasehold estate. Bob does not wish Claire to use the staircase. In addition,
Claire decided to set up a beauty salon on the first floor of No 37. Before
transferring the lease of the first floor Alan had run a ventilation system from the
first floor to the ground floor. Claire wishes to use this system as she needs to
keep her salon at just the right temperature. Alan had also been using the hot tub
on the roof of Claire’s flat. The lease to Claire included the roof space. Alan has
now sold the lease of the ground floor to David who wants to block off the
ventilation shaft although he was aware of Claire’s use of the ventilation shaft at
the time of sale. Claire is refusing to let David use the hot tub whilst the dispute
goes on, but David insists that he is entitled to use the hot tub.
Advise Claire.

Ans: Analyzing the different kinds of rights that can be considered easements, their
means of creation, and the impacts they have on other parties is important in order to
make an assessment. Although though Alan is Claire's landlord and the pertinent
estates are leasehold, this has no bearing on how the easements function as long as a
dominant and servient tenement are owned separately.

(a) The Stairway

According to the decisions in Chaudhary v. Yavuz (2011) and Liverpool CC v. Irwin
(1976), using a staircase to reach property may constitute an easement. Moreover,
there are two separate-owned tenements: the dominating and the servient. The fact that
the properties may or may not have the same freeholder is unimportant in this case. It is
obvious that giving simple access to the upper floor favors the dominant land. In these
conditions, this privilege has the potential to become an easement.

The second concern is whether Alan and John, the original parties, ever created such
an easement. Because John and Alan had a written agreement that Alan might use the
stairway, this easement is equitable in accordance with Walsh v. Lonsdale (1882)
theory and section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. All
property rights that came with the land should be enjoyed by Claire as Alan's successor
in title. But, since it is an unregistered equitable easement, it may be challenging to
demonstrate that John's successor, Bob, is subject to it. The priority guidelines in s. 29
LRA 2002 will determine whether or not he is obliged in this way. Because the
easement was not the subject of a notice, Bob could only be bound by it if it qualified as
an overriding interest under Sched 3 LRA 2002. As determined in Chaudhary v.
Yavuz,17 it does not. Claire is unable to enter the building using the stairway going
forward. It's also crucial to remember that, given these conditions, there is no way for
the court to "implicitly" grant an easement of necessity. In order for such an easement to
be inferred between a future grantor and grantee, there must be a conveyance, which is
not the case.

(b) The Ventilation System

The first thing to keep in mind is that, according to Wong v. Beaumont Properties
(1964), an easement exists for the passage of air along a specified route, such as a
ventilation shaft. But it is still unclear whether one has been made in Claire's favor.
Since there is no stated easement, we must determine if one of the four ways to imply
easements will benefit Claire. They include common intention, easements of necessity,
the Wheeldon v. Burrows ruling from 1879, and the application of s. 62 LPA 1925. First
off, Claire won't benefit from the laws governing easements of necessity in this situation
because there isn't any proof that she actually needs the money (see MRA Engineering
v. Trimster (1987) and Manjang v. Drammah (1999)).

Second, the principle of implied shared intention may be applicable because Alan was
aware that Claire intended to operate a beauty parlor out of the top apartment.
Nonetheless, the criteria for what constitutes a "same intention" are stringent (Stafford
v. Lee (1993); Chaffe v. Kingsley (2000)), and most crucially, the parties must share the
same objective. The most likely reason for Alan's behavior in this situation is that he
was not a part of the plan even though he was aware that Claire planned to open a
beauty shop as long as she could pay him for the leasehold interest. Nothing in this
spoke of a collaborative venture, so why would the laws governing common intention
easements not work in Claire's favor?

Third, because the grantor had previously utilized the property in a fashion that
amounted to a quasi-easement, the Wheeldon v. Burrows rule applies to imply an
easement into a deed of grant of an estate in land. Claire can rely on the rule in this
case because Alan had been using the ventilation shaft for air flow himself. The use of
the quasi-easement must also be "continuous and evident" and "reasonably necessary"
for the enjoyment of the dominant tenement, according to Wheeldon (Wood v.
Waddington, 2014). The ventilation shaft is likely to have been visible, and air flow
through the system is likely to have been continuous. Similarly, ventilation is
unquestionably "reasonably" required for use of the property as a beauty parlor. As a
result, a case based on Wheeldon v. Burrows has a decent chance of winning.

Claire might also want to make use of Section 62 LPA 1925, which incorporates
easements into estate conveyances. According to Sovmots Investments v. Secretary of
State for the Environment (1979), there often needs to have been a preceding diversity
of occupation of that land for a mere license to become an easement. Here, that was
not the case. However according to Platt v. Crouch (2003) and Wood v. Waddington
(2014), there is no need for prior diversity of occupation if the usage was continuous
and obvious (as it was in this case).

As her lease was "granted" as a formal estate, Claire may also rely on Section 62. 18
As a result of the Wheeldon v. Burrows rule and/or s. 62 LPA 1925, Alan would be
subject to an easement of passage of air along a specified channel. Is David required to
abide by this easement? If it was known to the buyer at the time of the disposition, or
was obvious on a reasonably careful inspection of the land, or had been used at any
point in the 12 months prior to the disposition, it will be considered an implied legal
easement and will prevail over a purchaser under Section 29 of the Land Reform Act of
2002 (LRA 2002), Sched 3, Paragraph 3. The last of them definitely holds true, giving
the easement precedence over David's estate and making it enforceable.

(c) The Hot Tub

The final question is whether Claire must allow David to use the hot tub. It is debatable,
though, whether using a hot tub can count as an easement. A right that is solely
recreational is not capable of being an easement, but the right to utilize a park was
thought to be capable, according to Re Ellenborough Park. The Canadian case Grant v.
MacDonald (1992) acknowledged the notion that the use of a swimming pool may be a
legal easement, whereas the Scottish decision in Moncreiff v. Jamieson disapproved of
it. But it's possible that using a hot tub is even less "easement like" than using a pool
and is more like getting a license. Due to the fact that it is a licence, it cannot bind a
third party (Ashburn Anstalt v. Arnold (1989)). There is also no reason to think that
David would have benefited from a constructive trust (see Ashburn Anstalt).
Additionally, and in any case, no express or implicit creation of the purported easement
has occurred because the "agreement" was only reached orally and there is no
evidence of an estoppel. Nothing indicates that David has been granted this right, hence
it is a shaky personal permission.