11 January 2021

Kirandeep Singh
Supervisor

Re: Gloria Bancroft

Dear Mr. Singh:

Per your previous email, the best legal advice that we can give to Gloria are the
following:

Gloria has the right to prevent Tomasz from further use of her garden path of 5
Banbury Lane to access his shed. At the same time, Gloria can demand from
Tomasz the use of his driveway in 7 Banbury Lane to park her car.
No easement was created over the property of Gloria while an easement was
created over the property of Tomasz.

5 Banbury Lane

As pronounced by the court in Re Ellenborough Park [1955] EWCA Civ 4,

there are four essential elements of an easement, to wit: 1) there must be a
dominant and servient tenement; 2) the right must accommodate the dominant
tenement; 3) the dominant and servient tenements must not be owned and
occupied by the same person; and, 4) the right must, “lie in grant” or that the
right is capable of being granted by deed. An easement can be created either by
Deed, by Statute, by Implication or by prescription.

Applying the pronouncement stated above, Gloria can prevent Tomasz from
using her garden path to access his shed as there was never a right that is
capable of being an easement. The requisites above-stated were not fully met.

The third requisite for the existence of a valid easement requires that the
dominant and servient lots must be owned by two different persons. Although
Mr. Ramirez frequently used the garden path to access his shed before and
after he leased out 5 Banbury Lane to Gloria, such did not result to an
easement because he was the owner of both lands at that time. In Roe v
Siddons (1888), it was ruled that a person can’t have an easement over his own
land as he can’t have a right against himself.

Moreover, Mr. Ramirez’s continuous use of the garden path even after he sold
the 5 Banbury Lane to the Gloria still did not ripe into a valid easement
because his use was merely tolerated by Gloria. Such use was only a mere,
“license”. A license can be bare (no consideration given) or contractual
(consideration given). The absence of easement entails no right to the use of the
garden path which can be passed to Tomasz after the conveyance of the 7
Banbury Lane to him.

Further perusal of the facts shows that Tomasz has alternate access point to
his shed without using the garden path of 5 Banbury Lane. As defined in the
case of Titchmarsh v Royston Water, the word “necessity” has been defined as
“absolute necessity”. Therefore, the burden on Gloria’s garden path as a way to
the shed of 7 Banbury Lane cannot be construed as an implied easement out of
necessity.

7 BANBURY LANE

With regard to the use of the driveway in 7 Banbury Lane as parking area of
Gloria’s car, an easement was created through the implied grant under Section
62 of the Law on Property Act of 1925. The said provision enumerated the
lists of benefits that pass in a conveyance of land without being explicitly
included. One of the enumerations include that “rights, privileges, and
advantages” pass with the conveyance. This means that a right, privilege
(permission) or advantage will be converted into an easement as long as the
conditions of a valid easement are met. This is to convert any right enjoyed by
the occupier of the dominant tenement before the sale or the lease into a legal
easement.

During the duration of the Lease, Mr. Ramirez verbally allowed Gloria to use
the driveway of 7 Banbury lane to be used as her parking area. He did so
because he knew there was no parking space in 5 Banbury Lane. The privilege
was enjoyed by Gloria, since, then.

The 5 Banbury lane was conveyed to Gloria after the expiration of the lease.
The privilege that Gloria was enjoying, including the right to use of the
driveway as parking area also passed unto her with the conveyance. That right
enjoyed by Gloria was converted into legal easements.

From the foregoing, Gloria’s privilege which she enjoyed, was converted to a
legal easement of parking, binds Tomasz in accordance with the provisions laid
down in the S3 of the LRA 2002.

Thank you!

Sincerely,
Trainee Solicitor