Archive for the ‘Easements of necessity’ Category

Easements of necessity

July 17, 2017

In Manjang v Drammeh ((1990) 61 P & CR 194, PC) R, having already occupied 63 Wellington Street in The Gambia for some time, was granted a lease of it for 21 years from 2 February 1977.

R also occupied an adjoining strip of land that lay between 63 Wellington Street and the River Gambia (‘the River Strip’). The only means of access to the River Strip on foot was through 63 Wellington Street. Again after a period of occupation on an uncertain legal basis, R was granted a lease of the River Strip in  1986.

In 1982, R assigned the lease of 63 Wellington Street to A. The assignment did not reserve an express right of way over 63 Wellington Street to access the River Strip.

R argued that a reservation of the right of way should be implied into the assignment. This argument failed.

Lord Oliver set out the three essential requirements for an easement of necessity to be implied: (1) there should have been a common owner of the two plots of land at the time of the assignment; (2) it had to be established that the only way to get to the public highway from the River Strip was across 63 Wellington Street; and (3) there must not have been a specific grant of the right claimed (196 – 7).

The first condition was not satisfied: R had not been the owner of the River Strip at the time of the assignment (R was granted the lease of the River Strip four years later).

It was also arguably the case that the second condition was not satisfied either: it was possible to access the River Strip by boat.

Contrary to the view of the majority of the Gambian Court of Appeal, an easement of necessity can not be implied purely on the grounds of convenience.

Michael Lower

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Acquisition of right of way by prescription

June 19, 2013

In Cheung Yuk Ying v Lo Koon Fuk ([2013] HKEC 932, CFI) the path leading from P’s house to the public footpath crossed the land of a Tso (represented by D). P’s land was landlocked and P claimed a right of way by prescription under the doctrine of lost modern grant. This succeeded. The path over D’s land had been used as the access between P’s property and the public footpath ‘on a reasonably regular basis’ (though perhaps not continuously) since at least the 1940s. On that basis, the doctrine of lost modern grant applied ([146] – [147]). The fact that the house was in ruins between the mid 1950s and the mid 1990s did not matter since the path was still used as an access to the property (perhaps as a way of getting to a chicken farm beyond it) during that time. The fact that, for much of that time, the occupiers and owners were all likely to have been members of the Tso did not mean that the use of the path was a private privilege reserved for members of the Tso.

The court considered, and seems to have been inclined to accept, a second and independent basis on which the easement might have come into existence. There was a re-grant of all Government leases in the New Territories in 1973 (New Territories (Renewable Government Leases) Ordinance) and all Government leases in the New Territories had been extended in 1997 (New Territories Leases (Extension) Ordinance). P’s land was land-locked. The grant of the claimed right of way could be implied on the basis of necessity on the re-grant or extension of the lease of P’s land (with a corresponding reservation on the re-grant or extension of the lease of D’s land). Alternatively, the rule in Wheeldon v Burrows or section 16 of the Conveyancing and Property Ordinance could result in the implied grant of an easement based on the then existing use of the path as a means of access from P’s land to the public footpath.

Michael Lower

Sale of part of land: inferred easement and abandonment of an easement

July 25, 2012

Re Clarke ([2012] UKUT 226 (LC) was concerned with the valuation of the freehold of property to be acquired by the tenant under the Leasehold Enfranchisement Act 1967. The question was whether, for valuation purposes, the property was landlocked. The tenant held the property under the terms of a 400 year lease granted in 1641 (‘the lease’). The tenant also owned the freehold of property to the south. The lease included both the property in question (a house) and other land to the north of the house. The tenant under the lease had the benefit of rights of way over land further to the north but there was no visible track or path in existence.

In 1946, part of the lease (the part on which the property stood) was assigned to T and the freehold of land to the south (‘the pink land’) was conveyed to T. The land to the south had the benefit of a right of way over a track leading to the public highway. This express grant did not, however, benefit the property. As long as the property and the pink land were (as now) in common ownership there was no practical problem since the owner of the property could simply cross the pink land to access the public highway to the south of it. For the purposes of the valuation of the freehold of the property, however, this was irrelevant unless the property had a legal right of way.

The Tribunal found that there was no inferred right of way over the pink land and the track that crossed it. The most plausible argument was an easement of necessity but this failed because of the fact that the common ownership of the property and the pink land meant that the property did have the right to cross the pink land.

It was likely that, legally speaking, the property had the benefit of an easement over the rest of the leasehold land to the north. The fact that no use had been made of the rights of way to the north for over 50 years did not mean that there had been an abandonment. The non-use was explicable on the basis of the practical alternative access over the pink land to the south.

Nevertheless, the freehold should have been valued on the basis that it was landlocked. A buyer might face litigation if it tried to exercise rights over land to the north and there would be severe planning difficulties in the way of constructing a useable road.

Weekly review: 18 – 23 July

July 23, 2011

From now on, Saturday’s posting will not be a new case but a round-up of the new postings from the previous week. The round-up will give a summary of the blog posts and sometimes some of the context relating to them.

Easements of necessity are based on intention

When A transfers part of his land to B, an easement of necessity might be implied into the transfer where otherwise the land could not be put to any use without the claimed easement. The easement is implied because the court decides that the parties must have intended that the land could be put to some use. Where the transfer makes it clear that no grant of an easement is intended there can be no easement of necessity Nickerson v Barraclough.

Dealings with property acquired under Hong Kong’s Home Ownership Scheme

Hong Kong’s Home Ownership Scheme aims to help people get onto the housing ladder. Property held under the scheme can be co-owned and can be sold but there are conditions and procedures to be observed. As Cheung Shu Yin v Yip So Wan illustrates, failure to observe the relevant procedure results in the alienation (here the creation of an interest under a resulting trust) being void.

Licensee may be estopped from denying licensor’s title

A licensee who knew the nature of the title claimed by the landlord when accepting a license is estopped from denying that title (Terunnanse v Terunnanse). So if the licensee has any doubts and may wish to raise them he should do so sooner rather than later.

Priority of charging orders

Charging orders have to be re-registered every five years and then take effect for a further five years from the date of re-registration. They retain priority as from the date of registration and not the subsequent re-registration (Incorporated Owners of Century Centre v Bank of China (Hong Kong))

The right of support and protection from the weather

Terraced or semi-detached properties may be so designed that they rely on each other for structural support. If this situation persists for long enough, an easement of support can be claimed based on prescription. This right of support includes a right to protection from structural damage caused by the impact of the weather on the support enjoyed by the remaining property (Rees v Skerrett) even though there is no general right to protection from the weather (Phipps v Pears).

Easements of necessity are based on intention and not public policy

July 18, 2011

The implication of an easement of necessity is based on what the parties must have intended  given the fact that land conveyed is land-locked and they are unlikely to have intended this.

Nickerson v Barraclough ([1981] Ch 426, CA (Eng)) concerned a plot of land that had formed part of a larger estate. The estate had been divided into a number of plots (including that owned by the plaintiff). It was contemplated that the plots would be used for building purposes. The plans prepared at the time of the sale in 1906 had shown the intended line of the roads to be built to serve the development. The conveyance had, however, expressly stated that the line of the roads might be changed and that no easements were granted over any part of the seller’s land until the roads had been completed. The question was whether, despite this, there could be an easement of necessity. Does a finding that there is no intention to create an easement (here based on the express intention not to create an easement) prevent a successful claim to an easement of necessity? Or are easements of necessity based on public policy (or is public policy an aid to construction so as to make it easier to find that there is an easement of necessity)?

The English  Court of Appeal held that easements of necessity are based on intention. A clearly expressed intention not to grant an easement prevents an easement of necessity from arising.

Meaning of easement of necessity

July 9, 2011

An easement of necessity arises when the property could not be used at all without it.

Ray v Hazeldine ([1904] 2 Ch. 17) concerned two neighbouring houses, originally in common ownership. H sold one house to R without reserving any easements. R then built a wall that stopped light reaching a room used as a pantry in the house retained by H. H knocked it down. R sought a declaration that she was entitled to build the wall. H claimed a right of light as an easement of necessity. It was admitted that the pantry could not be used as a pantry if the light to it was obstructed by the wall. The claim failed. This was not an easement of necessity since some other use could be found for the pantry which did not depend on the flow of light through the window. It was not enough that the claimed easement should be reasonably necessary; it must be absolutely necessary if an easement of necessity was to be implied.

Easement of necessity where otherwise the envisaged use would be illegal

June 23, 2011

Where a lease is granted that envisages a particular use, an easement of necessity will be implied where, otherwise, that use would be illegal.

In Wong v Beaumont Property Trust ([1965] 1 QB 173, CA (Eng)) L granted T a lease of cellars for twenty one years. The lease required the property to be used as a restaurant. T covenanted to control and eliminate all smells and odours and to comply with health regulations. The regulations in question required the provision of suitable and sufficient ventilation. T also covenanted not to cause a nuisance or annoyance to L or other tenants or occupiers. Compliance with the regulations and covenants required the installation of a ventilation system with a duct fixed to the outside wall of the back of the building. This fact was not appreciated by the parties when the lease was granted. L refused T permission to fix the duct to the back of L’s property above the restaurant. T sought a declaration that he was entitled to an easement that allowed him to fix the duct to the back of L’s property.

T succeeded. The English Court of Appeal held that T was entitled to an easement of necessity since it was objectively necessary at the time the lease was granted. Salmon LJ explained:

‘[I]f a lease is granted which imposes a particular use on the tenant and it is impossible to use these premises legally unless an easement is granted, the law does imply such an easement as of necessity.’ (at 184)

Easement of necessity: even if grantor does not own all of the land surrounding the dominant tenement

June 20, 2011

An easement of necessity can be implied into a conveyance when otherwise the land conveyed would be land-locked (and so useless) even if: (a) not all of the land surrounding the dominant tenement is owned by the grantor; and (b) the dominant tenement had the benefit of a permissive right of way (later withdrawn) at the time of the grant .

In Barry v Hasseldine ([1952] Ch 835) V conveyed land to P1. The land was surrounded by other land of V and of others. P1 had the benefit of a permissive right of way over a disused airfield to get to the public highway. P1 sold the land to P2. The owners of the airfield withdrew P1’s right to cross the airfield to get to the public highway. It was held that the owners of P1’s land had the benefit of an implied right of way across V’s land along a line to be chosen by V.