Esmnt Q7 ZB2012

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Question 7 Zone B 2012

Easement (Problem)
Dan leases Ralph a cottage which forms part of Dan’s large country estate. The cottage has a
small garden, and is a short distance from a main road. There is a track that runs from the cottage
across a narrow strip of land belonging to Dan’s estate to the main road. Dan regularly walks
from his estate through the cottage garden to reach the track. The track is the fastest route by
which Dan can reach the nearest train station, and the only means for Ralph to get access to the
main road. A few weeks after the lease is created, Dan allows Ralph to store his quad bike in a
locked shed on Dan’s land.
When Ralph’s lease expires, he buys the registered freehold title to the cottage from Dan. Ralph
and Dan fall out after a quarrel about the politics of fox hunting. As a result Dan tells Ralph that
he must pay to use that part of the track that lies on the narrow strip of his land. Dan also insists
that Ralph remove the quad bike from his shed. Ralph therefore decides to lock his garden gate,
preventing Dan from using the cottage garden to reach the track.
Dan seeks advice on his property rights. Advise him.

Issues:-
Can Ralph continue using the track running across Dan’s land & continue using the shed on
Dan’s land?
Can Dan continue using the path through the cottage garden to get to the track

Are the rights capable of being easements?


4 requirements in Re Ellenborough Park(1956)
There must be a DT and a ST
OTF the DT will differ according to the right in question. For the rights that Ralph is claiming
the DT would be the cottage and the small garden and the ST would be the rest of the estate. For
the right that Dan is claiming the DT would be the rest of the estate and the ST would be the
small garden and the cottage.
There must be diversity of ownership or occupation between DT and ST
OTF this is also satisfied as at the time of the dispute the Cottage and garden was owned by
Ralph and the rest of the estate was owned by Dan. Even before Ralph purchased the cottage and
the garden he was already occupying it as a tenant.
The alleged easement must accommodate the DT
This simply means that the rights must benefit the DT and not merely the person who owns or
occupies the DT. On our facts the alleged easements in question are a right of way and a right to
storage. At first glance it seems that these merely confer a benefit to the land owners (Ralph &
Dan) If this is the case then these cannot be easements – Hill v Tupper (1863).
However in London and Blenheim Estates v Ladbroke Retail Parks (1992) it was stated that what
should be looked at is not whether a commercial use (or a purely personal benefit) is being
facilitated by the easement, but whether the alleged easement is so connected with the land that
the benefit accrues to the current owner because he owns an estate in the land.
OTF – it is clear that both Ralph and Dan are benefitting from the rights because they are owners
of the estate on their respective properties. If they were removed from the land the rights would
not be benefitting them. As such it can be concluded that the rights do benefit/accommodate the
DT.

The alleged easement must be capable of forming the subject matter of a grant
There must be a capable grantor
There must be a capable grantee
The right must be sufficiently certain
OTF all 3 are satisfied (discuss)
Further these rights are rights that have been recognized as capable of being easements in
previously decided cases. The right to park – Newman v Jones., The right of way –
There are several issues that may arise with regard to these rights.
The right to use the shed – Extent of use
We are not told how large the shed is and to what extent the shed is being used by Ralph. If it is
excessive then this cannot amount to an easement – This was applied to the right of parking in
the case of Batchelor v Marlowe.
On the assumption that the right was not excessive then we can argue that the rights are capable
of being easements.
Have the easements been acquired by the claimants
Dan
The right was not expressly given to Dan and as such he must argue that the easement should be
implied in his favour. Since Dan was the previous owner of the cottage and the garden and he
now seeks to exercise the right of way over the cottage and the garden, it is submitted that the he
will imply the easement by way of reservation.
There are two ways to imply an easement by way of reservation – necessity and common
intention.
We are told on the facts that the track was the fastest way for Dan to get to the nearest train
station. This implies that there were other ways to get to the train station and also to get out of
his land. As such reservation by way of necessity will not be allowed – Re Dodd.
The other method to imply an easement by way of reservation is if there was a common intention
between the parties. – Peckham v Ellison. If there was some kind of agreement between Ralph
and Dan that Dan could continue using the garden to get to the track then this method may be
applicable. Or if any reasonable man looking at the arrangements would be able to imply a
common intention then it may also be applicable.
On our facts there seem to be nothing to indicate that there was any such common intention. As
such it is argued that Dan may not be able to imply the easement to use the right of way across
the cottage garden to reach the track.

Ralph.
With regard to Ralph, we will first consider the right of way over the narrow strip of land
belonging to Dan’s Estate for Ralph to get to the main road. Once again we see that this
easement was not expressly granted in any form so Ralph must argue that the easement has been
implied. OTF he will argue an implied grant.
There are 4 methods of implying a grant. OTF - we are told that path was the only way in which
Ralph can get access to the main road. This means that Ralph may argue that the easement can
be implied by necessity. As discussed above this can only work if it is a situation that the land
would be useless if the easement is not granted.
The facts are not very clear as to whether this track was the only way out of the property for
Ralph or merely the only way to the main road. If it is the earlier, then the easement will be
implied by way of necessity – Re MRA Engineering
However if there were other ways to get out of the land and possibly a longer way to eventually
get to the main road then he will not be able to argue an implication by way of necessity.
In any event, it is argued that Ralph will be able to argue an implied grant of the easement using
the rule in Wheeldon v Burrows. The rule states that where a person transfers part of his land to
another that transfer impliedly includes the grant of all rights in the nature of easements that the
seller used prior to the transfer for the benefit of the part transferred.
On the facts we see that Dan regularly walks from his estate through the cottage garden to reach
the track. This would be a quasi easement. When Dan leased the cottage and garden out to Ralph,
the rule in Wheeldon would have converted the quasi easement into a full blown easement in
favour of Ralph.
There are some conditions attached to the application of the rule. Firstly the right must be
continuous & apparent and necessary for the reasonable enjoyment of the land. This is quite
easily satisfied as we are told that it was the only way to get to the main road. It would be
necessary for the reasonable enjoyment of the land.
Also the right must have been used by the transferor prior to the sale. This is also provided for in
the facts.
As such, unless the lease agreement between Ralph and Dan specifically excludes the application
of the rule, it is submitted that the rule in Wheeldon v Burrows will be applicable and Ralph will
be successful in arguing an implied grant of the right to walk across the track.
The nature of the easement that Ralph will get will depend on the lease. If the lease was a legal
lease then the easement would be a legal easement. If the lease was an equitable lease then the
easement would be an equitable easement.
With regard to the right to park his quad bike, we see that when Dan first told Ralph that he
could park there this was merely a bare licence. This cannot be protected or enforced against
Dan.
However, we are told that when the lease expired, Ralph bought the freehold from Dan. This
may trigger the application of yet another method to imply a grant of an easement namely s.62
LPA’25.
The case of Hair v Gillman & Inskip states that if s. 62 applies, it will convert mere licences that
were previously enjoyed on the land into full easements for the benefit of the purchaser of the
land. There are several preconditions for s.62 to apply.
Firstly the sale must have been a conveyance meaning it must have been completed by way of a
deed. If this is not done then s.62 will not be applicable. We are not told this clearly on the facts
and we will proceed on the assumption that it was done by deed. A second requirement is that
there must be prior diversity of occupation between the DT and the ST. We see this is the case of
Sovmots v Secretary of State for the Environment. OTF – we see that prior to the sale Ralph was
occupying the cottage and Dan was occupying the rest of the estate and as such this requirement
is also satisfied.
As such, unless the sale agreement expressly excludes the application of s.62, it is submitted that
Ralph will be able to continue using the shed to park his quad bike.

Prepared by
Daniel Abishegam

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