Question 6 Zone B 2016

Easements (Problem)

Andy was the registered owner and occupier of a house with an adjoining commercial garage. In
2007, when Andy retired, he granted Barney a lease of the garage for a period of five years. For
many years there had been a sign advertising the garage on the side wall of the house next to the
main road, however Andy removed it a few weeks after Barney took possession of the premises. The
forecourt of the garage was quite small and Andy had occasionally parked cars awaiting repair on the
drive of his house, but, when Barney began doing so, Andy asked him to stop. In retaliation Barney
told Andy that he would no longer be allowed to cross the garage forecourt, which separated the
drive from the main road. This prevented Andy parking his car on the drive although it was still
possible to access the drive on foot via a footpath that ran between the forecourt and the house. A
few weeks later Andy and Barney decided they were both being petty; Andy allowed Barney to
reinstate the advertising on the side of his house and said he could use the drive occasionally in
return for Andy being allowed to resume driving over the forecourt. In 2012 the lease was renewed
for another 5 years at which point Barney told Andy he was, once again, no longer permitted to drive
over the forecourt. Andy consequently painted over the advertising sign and refused to let Barney use
his drive. Discuss.

• What are the alleged easements claimed ?

o Andy – the right to drive across the garage forecourt
o Barney – the advertising sign on the side wall of the house and the right to park cars
on Andy’s drive
• Two issues – Are the alleged easements capable of being easements and how were they
created/acquired by the parties

Are the alleged easements capable of being easements

• Re Ellenborough Park, Evershed MR – 4 requirements

• There must be a dominant tenement and a servient tenement
o On the facts for the right to walk across the garage forecourt claimed by Andy, the
DT would be the House and the ST the garage
o For the other rights claimed by Barney the DT would be the garage and the ST would
be the house
• There must be diversity of ownership or occupation between DT and ST
o Although Andy owns both pieces of land, diversity of occupation would be enough.
OTF – Barney occupies the garage under a lease.
• The alleged easements must accommodate the dominant tenement
o Both the garage and the house are next to each other as such they are sufficiently
proximate to each other.
 o Issue:- Advertising sign – would this be a purely economic benefit to Barney thus not
benefiting the land at all. If this is the case then the right cannot exist as an easement.
This was seen in Hill v Tupper. However, this case is contrasted with the case of
Moody v Steggles where although a commercial or business advantage was accrued
to the owner of the Dominant Tenement, the easement was granted. The facts of
Moody are very similar to our facts here today as it was about an advertising signage
for a pub.
o The case of London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (1992)
also confirmed this and a distillation of the cases suggest that the test today is not
whether a commercial use 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.
o Barney would benefit from the advertising sign only because he has the interest in the
garage. If he didn’t, the sign would not be benefiting him in any way. As such we
argue that the London & Blenheim test is satisfied.
o The right to park will benefit the garage as it provides more space and the right to
drive across the garage forecourt also benefits the house as it provides the occupant of
the house a shortcut thus increasing the value of the land. You could argue that the
right to park also confers a purely economic benefit. Then above argument applies.
• The alleged easement must be capable of forming the subject matter of the grant
o There must be a capable grantor and a capable grantee. – on our facts this is clearly
satisfied as the both of them own estates in the land that will allow them to grant
easements
o The rights must be generally certain and capable of being the subject matter of a
grant. For this discussion we will fall back on previous cases where the rights that are
claimed in here have been regarded as capable of forming the subject matter of a
grant
 Advertising signage – Moody v Steggles
 Parking – Newman v Jones
 Right of way across land – Borman v Griffith
o As such all the alleged easements claimed here are capable of being easements.
o Issue:- The right to park. Parking has always been an area subject to much debate.
The law is reluctant to grant easements which gives the interest holder so much
occupation and use of the land that the actual owner no longer has use of his land.
o As such this cannot amount to an easement if the right results in the servient tenement
owner, Andy losing all measure of occupation and control over the land.
o In Batchelor v Marlowe (2001) it was held that the right to park several cars on the
alleged servient land could not be an easement as the impact on the land was too great
and inconsistent with the limited nature of easements. This must be contrasted with R
Square Properties v Nissan Motors (2014) where the court allowed an easement for
80 cars to be parked on the servient land because it did not completely deprive the
owner of reasonable use of his land.
 o Despite Lord Scotts attempt in Moncreiff v Jamieson to redefine the test to one where
the issue is whether the owner has possession and control of the land, it must be now
accepted that the test is still whether the owner has reasonable use.
o We are told that Andy used to park the cars that were awaiting repairs in the drive
occasionally. It is submitted that Barney would probably want to do the same.
Assuming the drive was large enough to accommodate more cars and Andy could
park his car there as well, the courts will allow the easement. However, if by Barney
parking his customers’ cars in Andy’s drive it results in Andy no longer being able to
use the drive then the easement will fail.
• It is argued that all 3 rights claimed are capable of being easements

How have the rights been created/acquired by the claimants

Advertising signage

• Assuming there was no express grant of the right to the easement of the advertising signage,
we must look into the possibility of it being implied
• Barney will argue an implied grant in his favour. There are 4 ways to imply a grant of an
easements. OTF this will not be an implied grant by way of necessity (he can use the land
without the advertisement) or common intention (there was no indication of any agreement
and even though Andy knew that Barney was going to run the garage, the garage can still run
without the advertising signage – Wong v Beaumont distinguished)
• Barney is advised to argue the application of the rule in Wheeldon v Burrows. The rule states
that when a person transfers part of his land to another (the DT), that transfer impliedly
includes the grant of all quasi easements that the seller used and enjoyed prior to the transfer
for the benefit of the part transferred.
• We are told that the advertising signage was there prior the grant of the lease of the garage to
Barney. This means when Andy was operating the garage he was using the signage on the
wall of the house to advertise the garage as well. This would be a quasi-easement.
• Upon signing the lease, the right to use the signage would be transferred to Barney as well.
However, there are some conditions to this rule. The right must be continuous and apparent,
and necessary of the reasonable enjoyment of the land – Wood v Waddington (2015) has held
that both these requirements is necessary and not either one as previously accepted.
• OTF – It had been used continuously by Andy all the way to the 2007 lease and as all
advertisements go it would have been apparent. It is argued that the second requirement does
not place as high a standard as necessity. It is submitted that in order for the garage to run
well it should be properly advertised and as such it would be necessary for the reasonable
enjoyment of the garage.
• If the courts accept these arguments then the rule in WvB will apply and Barney would have
acquired the easement by way of implied grant. If the courts do not accept that the
advertising is necessary for the reasonable enjoyment of the garage then Barney is advised to
argue the application of s.62 LPA 1925
 • Today, as a result of the case of Platt v Crouch and confirmed in Wood v Waddington, the
requirement for prior diversity of occupation in s.62 is no longer necessary. As such,
provided that the lease was done by way of deed (a conveyance), s.62 may also apply to
transfer the easement from Andy to Barney.
• The requirement for s.62 to operate without prior diversity of occupation is that the right
must be continuous and apparent. The requirement for it to be necessary for the reasonable
enjoyment of the land is not a requirement here.
• So in any event, it is argued that Barney will be able to acquire the easement. He will be able
to get a court order to insist that Andy put up the advertising sign again.

The right to park

• Barney will argue an implied grant here as well. It cannot be by way of necessity or intended
easements
• The rule in Wheeldon v Burrows will probably not succeed here as the right was not
continuous when Andy was using it as we are clearly told that he used it occasionally.
• For the same reason, the application of s.62 will also fail. This is because there is no prior
diversity of occupation (prior to the 2007 lease) on the facts, as such the traditional
application of s.62 will fail. As discussed earlier, without prior diversity, it will still be
possible to argue s.62 but the right must be continuous and apparent.
• However, we are told that Andy allowed Barney to use the drive to park the cars awaiting
repair. This would be a licence.
• The case of Hair v Gillman & Inskip has held that s.62 LPA 1925 works in a way that will
transform a mere licence onto a full blown legal easement. Barney is advised to argue the
application of s.62 as a result of the 2012 lease.
• Provided the 2012 lease was done by deed (conveyance), we see that there was prior diversity
of occupation as Barney was already in occupation of the garage by the time the 2012 lease
was given thus satisfying the requirements in Long v Gowlett. This means that s.62 will be
applicable here and the mere licence to park the cars on the drive that was given by Andy to
Barney will become a full blown legal easement in favour of Barney.

The right to drive across the garage forecourt

• Andy is claiming for this right over land that he previously occupied. This would mean that
he needs to argue the existence of an implied easement by way of reservation. The only way
in which an easement can be implied by reservation is by necessity and intended easements.
Both of which do not apply to Andy in the circumstances.
• Andy will probably not be allowed to use the right of way over the garage forecourt.

Prepared by Daniel Abishegam