Prescriptive easements: deciding on whether user was as of right

In Poste Hotels Ltd v Cousins [2020] EWHC 582 (Ch) the court had to consider a claim to have acquired by prescription a right to park in a particular place in a private street by a person (Cousins) who had a house in the street. It mattered because Poste Hotels had a right of way over the street to the rear entrance to the hotel. The space over which the defendant claimed the car parking right was in front of the hotel entrance. Exercise of the right claimed would prevent the hotel from using the entrance.

Poste Hotels argued that there was an alternative explanation for the defendant’s parking right; this was that any member of the public could park in the street. The defendant’s use of the street for car parking was the same as any other member of the public.

Morgan J. explained how this kind of dispute should be approached:

‘Where the court is asked to choose between two explanations for the user both explanations must produce the result that the user was lawful. Where there are said to be two explanations for the user, each of them involving a lawful origin for the user, one has to ask whether both explanations are reasonably possible. If there are two reasonably possible lawful origins then the position is as stated in Gardner v Hodgson’s Kingston Brewery Company [1903] AC 229 per Lord Lindley at 239: “[i]f the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established ..” ‘ ([35])

In this case, however, there was no alternative lawful user that could account for the use of the street for car parking; the street was not a public highway so it was unlawful for members of the public to park there ([43]). In any event, the grant of an easement was, in the circumstances, the more likely explanation ([50]).

On the facts, the defendant was able to prove a prescriptive right to park in the street but not specifically in the space in front of the hotel entrance.

Michael Lower

Advertisement

Right of way: with vehicles or only pedestrian?

In The Dairy Farm Company Limited v Secretary for Justice ([2020] HKCFI 306), a 75 year Government lease of land in Pokfulam (‘the Lot’) to Dairy Farm contained a clause (‘SC20’) stating that: ‘“A right-of-way from Pokfulam Road to the new lot on a line to be approved by the Director of Public Works will be given.’ 

The question was whether the right of way was to be for vehicles or whether only pedestrian access was contemplated. Dairy Farm successfully sought an order requiring the Government to grant it a vehicular right of way.

This required the court (Hon. Wilson Chan J.) to apply the normal principles of contractual interpretation and to look at the words used in their documentary context and in the light of the relevant facts known to both parties at the time of the Grant (1958).

A number of contextual features combined to support Dairy Farm’s contention that the parties must be taken to have contemplated vehicular access:

• the right of way was for access to domestic premises and so the grant was of a right of way for all purposes required for that use;
•  SC20 entitled Dairy Farm to construct a ‘road or path’, suggesting both pedestrian and vehicular access was contemplated;
•  SC20 required Dairy Farm to contribute to the cost of maintaining the road suggesting a type of use that might damage it; ([33])
•  the right of way was intended to connect to the vehicular access on Pokfulam Road;
•  pre- Grant correspondence between the parties suggested that the background was a plan to develop a network of roads in the area capable of accommodating vehicular access;
•  the 75 year term militated against a restrictive interpetation;
•  especially since vehicular access would be needed for the repair or rebuilding of any buildings on the Lot;
•  the Lot was intended to be used to house senior staff of Dairy Farm (who were likely to have cars) ([35] – [36]).

Hon Wilson Chan J. decided that the Government’s refusal to grant a vehicular right of way was a breach of SC20 ([72]) and, since it rendered the land practically unusable, a derogation from grant ([73]). The Government was ordered to grant the right of way.

Michael Lower

Determining the extent of an easement by prescription

Introduction

In Lynn Shellfish Ltd v Loose ([2016] UKSC 14) M had an exclusive prescriptive right to take shellfish from a stretch of foreshore on the South East coast of England. M granted a lease of this right to L.

L brought proceedings against parties he alleged were catching shellfish within the area which L claimed was subject to his lease. The dispute arose because the low water mark (marking the seaward boundary of the area subject to the prescriptive right) changed over time.

There were two aspects to the dispute:

(a) where was the line to be drawn between the area of shoreline subject to the right and the sea?

and

(b) whether sandbanks which had not been attached to the shore at the time that the right was acquired, but which later became attached to the shore, were subject to the prescriptive right?

Amongst other questions, the UK Supreme Court had to consider: (a) the general principles concerning the extent of a prescriptive right; and (b whether a prescriptive right could relate to a shifting area of land.

Lord Neuberger and Lord Carnwath jointly gave the main judgment.

Area covered by the right: depends on the actual use relied on

On the first question, the Supreme Court said:

‘in order to identify the nature and extent of the right obtained by prescription, one has to examine the actual use as of right upon which it is said to be based.’ ([45]).

 

Whether a prescriptive right can relate to a shifting area of land

The starting point is that:

‘The concept of a conveyance of, or a grant over, a shifting, or fluctuating, area of land is not offensive to any principle of property law, provided that the land in question can be ascertained at any time with reasonable precision.’ ([48])

And so such a right could be obtained by prescription ([50]).

 

Decision

(a) The area subject to the right varied with changes in the low water mark:

‘[it is] .. inherently very likely, indeed inevitable in terms of practical reality, that the putative Right would have been exercised over an area which was defined, or limited, by a shifting low tide mark.’ ([58])

(b) The prescriptive right did not affect the sandbanks which became attached to the foreshore. The evidence did not show that the actual use extended to those sandbanks. The public would previously have had the right to fish there and that right had been exercised ([73]).

Michael Lower

 

Regency Villas: the validity of a recreational easement

The issue

In Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd ([2018] UKSC 57) the UK Supreme Court had to consider the validity of a recreational easement. The question was whether the right of timeshare owners to enjoy ‘the free use of sporting and recreational facilities provided in a country club environment’ was capable of being an easement (Lord Briggs at ([1]).

The transfer of a timeshare apartment building contained a right for the timeshare owners:

‘to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of the Broome Park Mansion House, gardens and any other sporting or recreational facilities on the Transferor’s adjoining estate.’

The facilities included a restaurant, gymnasium and sauna. After the transfer, there were changes to the facilities provided.

Lord Briggs gave a judgment with which the majority of the other members of the Supreme Court agreed.

Interpretation of the right granted

Lord Briggs reached the following conclusions as to the construction of the relevant terms of the transfer:

1. the parties intended to create an easement, not a purely personal right ([25]);
2. the right granted was ‘a single comprehensive right to use a complex of facilities’ including not only the facilities as they existed at the time of the transfer but also any later replacements or additions ([26]);
3. the grant was not conditional on the grantees making a financial contribution to the operating, maintenance or updating of the facilities ([30]).

The essential characteristics of an easement

In re Ellenborough Park, the English Court of Appeal accepted that easements must have the following characteristics:

1. there must be a dominant and a servient tenement;
2. an easement must accommodate the dominant tenement;
3. the dominant and servient owners must be different persons; and
4. a right over land cannot amount to an easement unless it is capable of forming the subject matter of  grant.

Did the rights to use the sporting and recreational facilities accommodate the dominant tenement?

Lord Briggs noted that the dominant tenement in this case was a development of timeshare apartments, typically used for holidays. The grant of rights to use the neighbouring facilities was, ‘of service, utility and benefit to the timeshare apartments as such’ ([53]).

Were the rights capable of forming the subject matter of a grant?

Step-in rights and the ouster principle

If the rights granted were an easement the dominant owner would have the right to enter the servient land to maintain the facilities so that they were capable of use if the servient owner failed to do so (‘the step-in right’).

The argument was that the exercise of the step-in right would deprive the servient owner of lawful possession and control of the servient land and so infringe the ouster principle.

The ouster principle was explained in these terms (referring to the speech of Lord Scott in Moncrieff v Jamieson):

‘the ouster principle rejects as an easement the grant of rights which, on one view, deprive the servient owner of reasonable beneficial use of the servient tenement or, on the other view, deprive the servient owner of lawful possession and control of it’ ([61]).

Lord Briggs rejected the proposition that the exercise of the step-in rights would amount to an ouster:

1. the question was whether the grant itself (not the step-in right) would be an ouster ([64]);
2. in any event, the step-in right allowed the dominant owner to do no more than what was sufficient to enable the rights granted to be exercised ([65]).

An easement can only demand ‘mere passivity’ on the part of the servient owner

An easement cannot require the servient owner to take positive action (Moncrieff v Jamieson at [47]). This principle was not infringed; although there was a commercial expectation that the servient owner would maintain the facilities there was no obligation to do so. The continued, meaningful use of the rights did not depend on the servient owner carrying out works of management, maintenance, repair and renewal ([71]).

Lord Carnwath’s dissent concerning the ‘mere passivity’ point

In his dissenting judgment, Lord Carnwath argued that the enjoyment of the right to use the facilities required the servient owner to manage and maintain them ([95]). The right claimed ‘is not a simple property right, but permanent membership of a country club ([96]).

Should these recreational rights be accepted as easements?

The easement claimed was, ‘a recreational right pure and simple’ ([75]). It went beyond Re Ellenborough; should the right be accepted as an easement provided that the Re Ellenborough criteria were satisfied ([74])?

Lord Briggs thought that it should be:

‘Where the actual or intended use of the dominant tenement is itself recreational, as will generally be the case for holiday timeshare developments, the accommodation condition will generally be satisfied.’ ([81]).

Michael Lower

 

 

 

 

 

Right of way and lost modern grant

Introduction

In Yik Wai Pong v Yick Pak Kin the Court of First Instance was asked to consider whether the plaintiff had acquired a right of way over an access road on the defendant’s land under the doctrine of lost modern grant.

Facts

The plaintiff and defendant were relatives and owned neighbouring areas of land. The plaintiff claimed to have acquired a right of way over an access road on the defendant’s land leading to the public highway.

The law

Wilson Chan J. summarised the relevant principles:

‘(1) If the owner of land uses a road as a means of access to, and egress from, his land for more than 20 years “as of right”, then, at least in the absence of special circumstances, he will obtain a right of way over the land for the benefit of his land.
(2) Whether the use is “as of right” depends on the claimant showing that it had been nec vi (without force), nec clam (without stealth) and nec precario (without permission from the owner).’ (at [73])

Reasons for the failure of the claim

Failure to establish user for a 20 year period

The plaintiff lived in the UK until 2002, only visiting the property for a week or so every few years. This was not sufficient user of the road to count for this purpose. The relevant use only began in 2002 and so the twenty year period had not been completed.

User with consent

It was doubtful whether even the post 2002 use was ‘as of right’. There was an implicit permission given the family relationship between the plaintiff and defendant ([79]).

The defendant gave the plaintiff a key so that the plaintiff could use the access road. In providing this key, the defendant could be said to be giving express permission for the plaintiff to use the road ([79]).

Michael Lower

 

Does acceptance of an obligation to fence off access to an easement amount to abandonment>

In Annetts v Adeleye ([2018] EWCA Civ 555) the English Court of Appeal had to consider whether a dominant owner’s acceptance of an obligation to fence off access from the dominant tenement to the servient tenement amounted to the abandonment of a right of way.

The dominant tenement (‘the strip’) had formerly been part of a larger portion of land (‘Summerhill’) with the same right of way. The owner of Summerhill imposed the covenant on the sale of the strip to the owner of a neighbouring property.

The court also to consider whether the right of access from Summerhill over the strip to the servient tenement would revive if Summerhill and the strip were again to come into common ownership.

 

Abandonment of an easement

The relevant legal principles are to be found in Gale on Easements which was cited with approval in Dwyer v Westminster CC ([2014] 2 P & CR 7):

‘a. whether a person intends an abandonment is not a subjective question; it is always a question of fact to be ascertained from the surrounding circumstances whether the act amounts to an abandonment or was intended as such;

b. abandonment depends on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement; to establish abandonment of an easement the conduct of the dominant owner must have beensuch  as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement;

c. abandonment is not to be lightly inferred; owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it;

d. non-user is not by itself conclusive evidence that a private right is abandoned; the non-user must be considered with and may be explained by the surrounding circumstances.’ (Arden LJ at [8])

 

The fact that the owner of the dominant tenement had no need for the time being to use the right over the servient tenement would also suggest that the right of way had not been abandoned (Arden LJ at [9] citing Dyer).

The search is for the objective intention of the dominant owner as reasonably perceived by the servient owner (Arden LJ at [10]).

Given the principles mentioned above, the question is whether the hypothetical servient owner would have concluded that the right of way from the strip had been abandoned (Arden LJ at [37]). The issue has to be determined at the date of the transfer ([54]).

 
The hypothetical servient owner has some knowledge of the law; this person knows that covenants to erect a fence (being positive covenants) do not run with the land and would not bind a later owner of the strip ([48]).

 

Application to the covenant to fence off access to the servient tenement

Whether building a fence to block access to the right of way is an abandonment has to be considered on a case by case basis in the light of the above principles.

Abandonment ‘is not to be lightly inferred … Even a major obstruction does not necessarily result in abandonment of a right of way’ (Arden LJ at [49]).

It was relevant that the servient owner, who had the most to gain from an abandonment, was not a party to the covenant to build the fence (Arden LJ at [51]).

There was no abandonment.

 

If Summerhill and the strip came into common ownership would the right to cross the strip to get to the servient tenement revive?

It would (Arden LJ at [56]). The position is similar to that where the dominant and servient tenement come into common ownership (Arden LJ at [58]).

Michael Lower

 

 

Easements of necessity

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

Ouster and car parking: applying Batchelor

In Kettel v Bloomfold Ltd ([2012] EWHC 1422) the claimants were long leaseholders of flats in a development. Their leases granted them the right to park in the car parking space identified in the lease. The developers wanted to allocate them new spaces and build on the existing spaces. The developers fenced off the area that they wanted to build on and enclosed the spaces. The flat owners sought an injunction to restrain this interference with their car parking rights.

The owners argued that they had either a lease or an easement of the space. It was agreed on all sides that, if there was no lease,  they had an easement. The judge (HHJ David Cooke) found that there was no lease. Despite the fact that the parties agreed that there was an easement, he considered whether the ouster principle prevented the flat owners from having an easement.

Moncrieff had not overruled Batchelor v Marlow and the judge accepted that Batchelor was binding on him: the test was whether the exercise of the car parking right left the developer with no reasonable use of the car parking space. It was a question of fact in each case whether the right granted made ownership of the servient land illusory.

In this case, the developer could pass over the space on foot when there was no car parked there and could authorise others to do so: it had granted such rights to pass over the spaces to other tenants in the leases to them. It could change or repair the surface, arrange for service media to pass under, or wires to pass over, the space. It could build over the space (and had made plans to do so). These rights had importance and value to the developer in managing the estate ([24]). The ouster principle was not infringed.

The flat owners were entitled to an injunction to restrain the actual and threatened interference with the car parking rights. This was not one of these exceptional cases where damages should be awarded instead. It would not be right to expropriate the car parking rights.

The judge held that if, contrary to his view, damages were to be awarded then they should be more than purely nominal. Even assuming that the flat owners were given an equivalent car parking space, they were entitled to damages on a release fee basis:  the flat owners should be awarded a sum that would be negotiated between willing parties for the right to build on the spaces ([61]).

Michael Lower

Car parking easements and the ouster principle: understanding Batchelor

In Virdi v Chana ([2008] EWHC 2901 (Ch)) A claimed to have acquired a car parking easement over land (‘the servient land’) partly owned by B. The question was whether the claim was invalidated by the ouster principle.

In Batchelor v Marlow, the English Court of Appeal rejected a claimed car parking easement on the basis that it left the servient owner without any reasonable use of the land.

If the whole of the surface area would be taken up by the car there was an ouster. An application of this test might seem to invalidate the easement claimed in Virdi.

Batchelor came in for severe criticism by the UK Supreme Court in Moncrieff v Jamieson. Moncrieff made ‘control and possession’ the test. This was a relaxation of the strict test in Batchelor.

Judge Purle QC noted, however, that Moncrieff had not overruled Batchelor and felt bound to apply Batchelor. He held that the easement was valid even when the Batchelor test was applied.

First, peculiar to the facts of this case, B did not own all of the servient land, only a part of it. It could not be said that the claimed easement prevented B from parking since B had no right to  do so.

Second, some uses of the land owned by B remained possible: planting trees or shrubs, erecting a trellis. These could be done so long as they did not prevent the parking of a car.

Judge Purle thought that even the right to resurface the land prevented the easement from infringing the ouster principle. When the land was next to domestic property, resurfacing might have aesthetic value. Such a right was not wholly insignificant and illusory.

Michael Lower

Right of way: interference by co-owner and derogation from grant by erecting a gate

In Chin Ling Investment Ltd v General of Salvation Army ([2016] HKEC 1876) Chin Ling Investment (‘CL’) and the Salvation Army (‘SA’) owned neighbouring lots, created by a 1958 division of the land. The original combined lot had the benefit of a right of way from the land to Castle Peak Road (‘RoW1). When the lot was divided, the owner of the SA land granted the owner of the CL land a further right of way  (‘RoW2′) over the SA land to access RoW1.

SA erected a gate on the land over which it enjoyed RoW1 at the boundary with the SA land. This was found to be a substantial interference by SA with its co-owners’ rights over RoW1.

SA had already moved the gate so that it was now on its own land. It had taken to locking the gate but had given a key to the owners of the CL land. This was a derogation from the grant of a ‘free and uninterrupted’ right over RoW2. Providing the key did not alter this ([79], Deputy Judge ST Poon). The owners of the SA land were ordered to demolish the gate.

Michael Lower