EASEMENT PROBLEM PROPERTY FINAL HASBA

Q) 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.

The problem that arises in the scenario is connected to easements, that are
property rights to use the property of someone else in a limited capacity and can
take either a positive or negative shape. The question in the scenario at hand is
whether Andy, the owner of the house, has the authority and right of way to drive
over the forecourt of the garage that is now owned by Barney, and if Barney has the
authority to post a sign marketing about his garage on the wall of the property's
barn and use the drive for vehicles that are being repaired. Each right must be
addressed independently in order to examine the existing scenario and provide a
better analysis of how to advise Barney and Andy while considering the interests of
both parties.

Right of way:
It is crucial to first determine the dominant tenement (the land that benefits from
the easement) and the servient tenement. (i.e. the land in burden of easement). Due
to its ability to demonstrate benefit through a right of way, Andy is the
dominating tenement in the current situation. Barney, on the other hand, is the
servient tenement as it bears the burden of the granted right.

The first thing that needs to be investigated is whether or not the right of way
can be interpreted as an easement. in order to do so, a requirement outlined in
Evershed MR in ReEllenborough Park must be met, according to which (i) there must
be a dominant tenement and a servient tenement that are clearly present in the
factual scenario, and (ii) they both need to be controlled by two separate
individuals rather than by the same person, as per Roe v. Siddons. The person in
charge of the home in the current situation is Andy. Considering to the benefit of
having right of way, it becomes the dominating tenement. Due to the burdensome
nature of Andy's right of way and Barney's ownership of the garage, the latter is
living in a servient tenement.

According to the second criterion, servient tenements have to accommodate dominant

tenements. This implies that there needs to be an advantage to the land itself, not
only the owner, and that the servient tenements must be located close enough to the
dominant tenements for them to receive that benefit. similar to what was observed
in the Bailey v. Stevens case.However in this instance, we can see that both
territories are close to one another. They are now sufficiently near to one
another. The example of Hill v. Tupper highlights the fact that such an arrangement
should not constitute to a personal advantage as placing pleasure boats down the
waterway was determined to be not an easement owing to being unable to benefit the
property; this was a relatively limited perspective given by the courts.
nevertheless was determined in the case of Moody v. Steggles that placing a sign
board on the adjacent property to advertise a tavern in the alleyway was an
advantage to the dominant tenement and so it was a legal easement. . Moving
forward, a broader perspective was taken in the case of Platt v. Crouch, when it
was decided that mooring boats along a riverside constituted an easement because it
benefited the hotel, which was located on the dominant tenement. In the same way,
it might be considered that the home benefits from having an associated parking lot
in the present scenario by having to cross the garage to get to another land
(drive). Additionally, it is evident that there is variety of ownership in the
described situation because the two landowners are different individuals.

On the contrary, the issue at hand is one of reservation rather than grant. In
comparison to the granting of an easement, the law is less willing to infer a
reserve. As the purchaser or landlord is required to take action to safeguard the
usage of his or her remaining dominant land. Only in cases where easements are
presumed due to need or intended usage is there a chance that an implicit reserve
will be present. Under the Wheeldon v. Burrows rule or section 62 of the LPA 1925,
if the implied transfer looks to the prior usage of the land and the parties'
shared intention, the same can be proven. It was noted in the rare case of Peckham
v. Ellison that the tenants at number 16 had depended on an exclusive right of way
(that they had not particularly been awarded) to go through number 15's land in
order to access number 16's back door and that they had been using this right for
quite some time. In this regard, the court came to the conclusion that, due to a
shared intention, the seller was essentially reserved the right of way. However,
based on the factual situation, it cannot be said that the parties in the current
instance shared a single goal. It will also be up to us to establish the second
necessity rule. In the case of Manjang v. Drammah, the claimant asserted that he
had a right to use the bridge to get to the other side of the island. However, the
courts determined that this did not qualify as a requirement because there was a
boat route provided as an alternative, therefore it was not sufficient. Currently,
Andy has given Barney access to a portion of his land that he owns, but Andy is
unable to access the land where he has an implied easement of way reserved in his
favour. However, the necessity of reserving easements won't happen very often; for
instance, no easement of way will be permitted where taking a different path is
merely more convenient, as in "Re Dodd (1843)". The same Andy is therefore unlikely
to be successful in this as per the conclusion.

RIGHT TO PUT SIGN:

In this circumstance, it is necessary to construct an easement for the placement of
a sign board as advertising, as well as for the identification of the dominating
and servient tenements. Barney is the dominant tenement in this scenario since it
will benefit from a prominent sign that will draw in consumers. Andy's property, on
the other hand, is the servient tenement as it is required to have a sign posted on
the side wall of the building.

In this particular scenario, it is necessary to reevaluate ReEllenborough Park's

requirements in order to decide if this right qualifies for an easement. Although
it has already been covered thoroughly above to avoid repetition. According to the
second criterion, a servient tenement must help the dominant tenement and not just
serve its own interests Hill v. Tupper. At the moment, the supplied circumstance is
quite similar to the case of Moody v. Steggles, in which a sign was posted to
promote the pub and was found to be a legitimate easement as it benefited the
dominating land. In this situation, the sign will be bringing in customers. As a
result, it might be raised that the claimed right to put up a signboard is capable
of being considered an easement because all of ReEllenborough Park's conditions
have been proven. However, when the lease was issued, no clear provision was made
for the right in issue. Yet, there is no proof that such an offer actually
occurred. In order to support its establishment, legal easements that are not
explicitly stated will be used. In this case, the need of necessity and common
intention allows the application of the rule from Wheeldon v. Burrows. Cases when a
different entry point is considered to be reasonably required for the use of the
land serve as examples of the uncertainty. Wheeldon v. Burrows states that the
existence of an access point will not be fatal to a claim, but Wheeler v. Saunders
makes it clear that merely giving a more convenient means of access is unlikely to
be sufficient. Additionally, in regard to these facts, it can be proven by taking
into account the fact that Andy originally held an entire plot of land, and that he
later sold a portion of it (the garage) to Barney, which later turned into a
dominant tenement as a result of a benefit to post a sign board. Due to the lack of
prior variety in ownership, this is described as a quasi-easement. It was noted
that the sign promoting the garage was previously affixed to the side wall of the
property was also mentioned. Barney may continue taking the advantage of it. The
sign remained attached to the side wall of the house when Barney moved in, so it
can be demonstrated that this right was actually being used earlier than the sale,
as mentioned in the case of Alford v. Hannaford. Although the right in question
must have been used prior to sale or lease, as stated in the case of Alford v.
Hannaford. The right also needs to be ongoing, clear, and logically required for
the use of the land. The term "continuous" here refers to a sense of permanence
rather than a requirement that the right be exercised continuously, allowing for
use of the right at all times when it is needed. Additionally, a right must be
observable by means of a reasonably thorough physical examination of the land in
order for it to be considered "apparent." Accordingly, there must be something on
the servient land that indicates the right to a buyer, such as a road or a manhole
cover Ward v. Kirkland. According to the Wood v. Waddington case, both of these
conditions must be met. It must be remembered, nonetheless, that the condition is
"necessary" for "reasonable" enjoyment, as opposed to a necessity test, which is a
limited perspective used by courts (Hillman V. Rogers). The mere fact that the
carpark had been covered in tarmac in the case of Millman v. Ellis was proof that
it had been utilised as a right of way and was therefore continuous and obvious. In
the current instance, it might be inferred that use was ongoing and obvious given
that the advertisement was still fastened to the farm. Whereas on the other
hand, the fact that Andy removed the sign a few weeks after Barney assumed
ownership could mean that the usage is no longer being made and may not even be
ongoing. in order to satisfy the condition of fairly essential for land enjoyment.
The matter at hand is to determine if the usual benefit of the land has been
improved, that is a controversy of fact that should be determined by taking into
account both the nature of the dominant land and the right itself, according to the
book Lawson (2002), which uses this situation to explain a significant aspect. The
court will nevertheless take into account any inconvenience that is anticipated to
be given to the servient tenement, according to the ruling in Goldberg v. Edwards.
In this situation, it may be claimed that Andy won't experience any problems
resulting from placing a sign on the side wall of the home because the sign
previously existed and there's no reason it should do so again provided Andy has
other plans for the site. Thus, it might be claimed that the asserted easement to
erect a large sign fits both the standards set forth in Wheeldon v. Burrows and the
ReEllenborough objectives.

This argument was supported in the case of Sovmots Investments v. SS for

Environment. Nevertheless, a more uncommon case of Platt v. Crouch and Wood V.
Wadington, in which Court of Appeal determined that a variety of occupation is not
required if the use is ongoing and evident, but this view is still valid. We can
additionally state that the S.62 Law of Property Act 1925 is also applicable in
this instance as it requires variation of profession as both the garage and the
house are being used by various individuals. In addition to the scenario of Wright
v. Macadam, wherein the tenant had been granted permission to store coal in a shed,
there must also be consent to use the right from the servient tenement proprietor.
Since the facts merely mention that Andy has formerly engaged this authority, it is
uncertain from the circumstances in the present scenario whether Andy has given
Barney approval to place the sign board. Thus, since Barney intends to keep using
the same thing, it might be presumed that he has express authorization. We
understand from the stated information that there had already been a sign board
when Barney purchased the site, therefore this condition is also achieved. The
usage must also be occurring prior to conveyance, as demonstrated by the instance
of Campbell v. Banks, given that there will be nothing to infer otherwise. As a
result, it might be claimed that there was a legal conveyance of the garage (S.205
LPA1925), and the sale essentially provided a legitimate easement to put up a sign
in accordance with section 62.

To sum up, the claim for an easement of a right of way passes the substantive part
of the test, meaning it accomplished the ReEllenborough criteria and does not
correspond to exclusive possession. Nevertheless, the claim might not succeed since
we are not able to determine that the easement refers to a necessity, unless Barney
could demonstrate that in the absence of this right the dominant tenement would
turn out to be less successful. The easement for installing a sign board complies
with the Wheeldon v. Burrow and S. 62 LPA 1925 requirements as well as the
ReEllenborough standards. He is free to use his right to install a sign board, and
Andy cannot prevent him from doing so.

PARKING:
In order to answer this aspect, we must look at the actual matter of the grant
because these kinds of easements fall among possessory and non-possessory
properties in land. Even though the standards laid out in Re Ellenborough have been
completed, it will be challenging for the courts to apply this criterion in light
of the car parking situation. There have been several instances where people have
been granted "rights" to park on someone else's property. In addition to the
servient owner's usage of their own land being overly impeded by these rights, a
number of issues have arisen. In Hair v. Gillman (2000) and Batchelor v. Marlow,
respectively, the courts attempted to strike an equilibrium in the usage of the
property. In Batchelor v. Marlow, an argument for an exclusive right to park was
made throughout the time frame of 9.30 a.m. and 6.00 p.m. on weekdays after a right
to park was refused.Meanwhile, the House of Lords expressed reluctance regarding
this strategy in the Scottish case of Moncrieff v. Jamieson. In terms of this, Lord
Scott proposed that the test be advanced to take into consideration whether or not
the servient owner holds possession and control over the particular area of the
servient land on which the right to park is being exercised (Hill-Smith). The House
of Lords approved that there was no difference between Scottish and English law in
this area, thus they implemented this strategy. Whenever the grantor of the right
has not been totally eliminated of their use of the land (i.e., formal possession
and control), a restricted right to make use of parking spaces may constitute an
easement. This judgement was made in the case of R Square Properties Ltd v. Nissan
Motors, which was significantly different from the one made in Batchelor v. Marlow.
Additionally, easements may occur in the absence of an express grant, which again
necessitates considering the four strategies we covered above. In this case,
necessity and common intention will once again not be relevant because there have
been no facts supplied regarding common intention, and it is obvious that necessity
is not an issue. But when taking Wheeldon v. Burroughs into consideration, it
becomes clear that the quasi-easement was not "continuous and apparent" nor
"necessary for the reasonable enjoyment" of the land. This is because Andy had
previously used the land occasionally. Since s. 62 is only sometimes used and there
is no previous diversity occupation, it is equally lost in the absence of it.

Hence, in order to draw a conclusion, it would be probable to be argued that an

implicit easement would have emerged from the beginning in regard of the
promotional board but not the parking or right-of-way. As a result, when Andy
painted over it, Barney might have relied on his initial purchasing of the right to
ask for injunctive relief to have the advertising sign restored. The subsequent
licence Andy issued to Barney, prior to the granting of a new lease, indicates that
under Section 62, the licence Andy granted to Barney seems to have been converted
into an easement. Barney could not do the same with regard to the possible easement
of parking. Now that the second lease has been granted, Barney has an implicit
easement of parking as well as an inferred easement of advertising that dates back
to the beginning of the lease. Since the alleged right of way failed to initially
exist and is now unsuitable to exist under section 62 as an inferred reserve
(rather than a grant), Andy seems to have no identical remedy contrary to Barney,
despite the fact that he was not the one who started the current conflict.

To sum up, the claim for an easement of a right of way passes the substantive part
of the test—that is, it fulfilled the ReEllenborough criteria and does not
constitute exclusive possession—but it may fail in case if we are unable satisfy
the requirement that the easement amounts to a necessity. This is true even if
Dominic can show that the dominant tenement would become useless without the right
in question, which is less possible. Regarding the easement for installing a sign
board, it complies with the ReEllenborough standards and also meets the additional
conditions set up in Wheeldon v. Burrow and S. 62 LPA 1925. In light of this, it
can be claimed that Tariq can grow shrubs to prevent Dominic from feeding his
livestock. Dominic cannot prevent him from using his right to install a sign board,
on the other hand.