Question 6 Zone B 2017

Easements (Problem)

Tariq owns the freehold title to a detached house, Greenacre, in a rural part of Devon,
England. Greenacre is registered land. The house is surrounded by one acre of gardens and
grassland. Tariq bought Greenacre from Dominic in 2010. Greenacre had formerly been a
part of the land known as Brook Farm.

Dominic owns the freehold title to the farm, Brook Farm, which borders Greenacre. Dominic
inherited Brook Farm from his father. Brook Farm is registered land.

Dominic keeps cattle on his land. Once a week since 2010, Dominic has led his cows from
Brook Farm across grassland at the edge of Greenacre to another field which he also owns on
the far side of the main road. Dominic claims that thirty years previously his father used to
walk his cattle along an identified path across the land that is now Greenacre. He is unable to
prove this. Dominic also claims that ‘it is essential to be able to walk my cattle to the other
field because my main field cannot sustain grazing for my cattle all year long’.

Tariq claims that the entirety of Greenacre is needed for his future business plans, and
therefore that he cannot have cows walking across it. He intends to construct small buildings
for tourists to occupy for holidays.

Tariq also wants to attach a large sign advertising this tourist accommodation on the wall of a
barn on Brook Farm. There had previously been a sign attached to that barn before Tariq had
acquired Greenacre. The sign had advertised the farm shop which had formerly been operated
by Dominic’s father on Brook Farm. That sign was still attached to the barn when Tariq went
into occupation of Greenacre. Dominic took that sign down six months ago.

Tariq has planted a thick line of prickly holly bushes across the path that Dominic uses to
move his cattle to the alternative field and he has placed a padlock on the gate leading across
Greenacre from Brook Farm.

Advise Tariq and Dominic as to their rights.

Answer Outline

What are the rights being claimed and by whom?

• The right of way for the cows – claimed by Dominic

• The advertisement sign – claimed by Tariq

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 For the right of way the DT would be Brook Farm and the ST would be
Greenacre
o For the advertisement the DT would be Greenacre and the ST would be Brook
Farm
• There must be diversity of ownership or occupation between DT and ST
o Greenacre is owned by Tariq and Brook Farm is owned by Dominic.
• The alleged easements must accommodate the dominant tenement
o BrookFarm borders Greenacre so it is sufficiently proximate in distance to each
other.
o Issue:- Advertising sign – would this be a purely economic benefit to Tariq 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 Tariq would benefit from the advertising sign only because he has the interest in
Greenacre. 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 of way will benefit the Brook Farm as it serves as a connection to the
other land that is owned by Dominic. Further the path way will allow anyone who
owns Brook farm to graze their cattle on the other piece of land with a convenient
way to do so.
• 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
 Right of way across land – Borman v Griffith
o As such all the alleged easements claimed here are capable of being easements.
o With regard to both these rights there is no degree of use issue as none of these
rights are used to the point that the land owner has no reasonable use of his land
o No other factors negating an easement apply.
• It is argued that both 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
• Tariq will argue the implied grant of an easement. There are 4 ways to imply this. It will
not be by way of necessity as the signage is not essential to him using the land. It won’t
be by way of common intention as the plans for the tourist accommodation were future
plans so not something that Dominic could’ve known at the time of sale.
• Consider 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 Dominic’s father was using the advertisement to advertise the farm shop
that was previously on Brook Farm.
• Greenacre was previously part of Brook Farm. If the Farm shop was on the land on Brook
Farm that today forms Greenacre, then there is a possibility that Wheeldon may apply.
• If the farm shop was not on the land that today forms Greenacre then this will be a
problem and possibly Wheeldon may not apply.
• If the Farm shop was on the land now known as Greenacre then when Dominic’s dad was
using the advert this would’ve been a quasi-easement.
• This would convert into a full easement in favour of Tariq when the land was sold.
• 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.
• Discuss. Both satisfied. Tariq will get the easement by way of implied grant.
• Can s.62 LPA25 apply? Discuss Platt v Crouch

The right of way for the cows

• Dominic is claiming for this on land that he previously owned. If it was not expressly
granted to him then he will argue an implied reservation of an easement.
• Two methods
• Both not likely. Discuss.

Daniel Abishegam