Archive for the ‘Easements’ Category

Injunction to prevent nuisance can apply to defendants identified by description rather than name

April 18, 2012

An injunction can be granted against a person or group identified by description rather than by name provided that the description is sufficiently precise. An injunction is normally available to prevent nuisance (here unlawful interference with a right of way) and trespass. An injunction will only be denied in special circumstances.

In Billion Star Development Ltd v Wong Tak Chuen ([2012] 2 HKLRD 85) P owned property within the Mei Foo estate. P had the benefit of a right of way over the estate roads for the purpose of access to and egress from the property. P intended to build a block of flats on the property. Some residents of Mei Foo objected. They organised a protest group. Some of the protest group would block the estate road leading to the property whenever vehicles associated with the construction project attempted to gain access to the property. Some protesters also trespassed on the property.

The court had no doubt that P had the benefit of a right of way that entitled construction vehicles to use the estate roads to get to the property nor that the acts engaged in amounted to nuisance and trespass. P was entitled to an injunction unless there were special circumstances indicating that only damages should be available. The facts that no damage has been caused or that the acts complained of are relatively trivial are not special circumstances for this purpose ([38]).

Amongst the defendants was D7 (unidentified individuals trespassing on the property or interfering with the plaintiff’s right of way over the private roads in Mei Foo). The court held that it was possible to identify defendants in this way:

‘The Court has power to grant an injunction against a defendant described not by name but by reference to his conduct provided that the description is sufficiently certain to identify only those who are necessarily included and exclude those who are not.’ ([54]).

Some defendants argued that they were exercising their human rights of peaceful assembly and freedom of expression. This was rejected since the acts took place on private property and were essentially concerned with competing claims to property rights ([61]). Some defendants argued that their actions had not taken place at a time when construction work was being attempted and, since they had not infringed the relevant property rights, it was inappropriate to restrain them by injunction. This was rejected since their words and conduct made it clear that there was a real risk that they would attempt to interfere with the right of way ([69]).

The factual matrix and the construction of easements

December 30, 2011

A deed is to be construed in the light of words used, the document as a whole and the surrounding factual matrix (how the words used would have been understood by reasonable people with the knowledge of the parties). In some cases, the factual matrix can lead the court to disregard, for example, the route of an easement shown on an inaccurate plan attached to the deed when it is clear that the parties must have intended the easement to follow the route of an existing accessway the position of which was not accurately shown on the plan. Except in the case of continuous and apparent easements, section 16 of the Conveyancing and Property Ordinance (and section 62 of the Law of Property Act 1925) require diversity of occupation prior to the relevant grant. Occupation under the terms of a licence is not sufficient where the result was only an intermittent occupation shared with the owner.

In Alford v Hannaford ([2011] EWCA Civ 1099, CA (Eng)) H granted A a right of way over a track that he owned. The plan attached to the deed was out of date and did not reflect the position of the track as it existed at the time of the grant. There was a dispute as to which route was the route to be followed for the purposes of the easement. The court held that the parties must have intended the easement to be over the track that actually existed.

A claimed to have  acquired a right of way over part of H’s land by virtue of section 62 of the Law of Property Act (which is the English equivalent of section 16 of the Conveyancing and Property Ordinance). A had had a type of grazing licence over part of H’s land and she claimed to have enjoyed the relevant right during the subsistence of the licence. She argued that when she subsequently bought the land section 62 had the effect of impliedly granting the easement that she had enjoyed as licensee. This failed. A’s occupation for parts of the year as a licensee did not provide sufficient diversity of occupation: it did not ‘engage the general words in s.62(1) by creating identifiable rights over the retained land.’  (at para. 37).

Estoppel arising from an agreement as to the layout of an internal access road on a development site

December 23, 2011

Valentine v Allen ([2002] EWCA Civ 915, CA (Eng)) concerned rights over the internal access road serving a small residential development and leading to the public highway. When the initial plan for gaining access to the highway was blocked, the then owners of the properties on the development had a meeting and adopted a new proposed route for the access road based on an agreed plan (‘the Plan’). Based on this, there were transfers of land between the owners and two deeds of grant were entered into. The deeds of grant reflected the Plan but the land transfers were made by reference to a different plan inconsistent with the Plan. The result was that, at law, some parts of the deeds of grant could not take effect since the grantors did not own the relevant land. V sought a declaration to the effect that to this extent the deeds of grant were ineffective. A counterclaimed that V was estopped from denying that the deeds of grant were effective. The counterclaim succeeded on the basis of proprietary estoppel. The assurance that everyone would have access rights based on the Plan was given at a site meeting. A and others had subsequently relied on it in several ways (laying out the road in accordance with the Plan and building walls and a garage in a position that reflected it). On this basis, A and the other owners were entitled to equitable easements that accorded with the Plan and the deeds of grant.

V appealed but the Court of Appeal upheld the decision at first instance. Chadwick LJ preferred to rely not on proprietary estoppel but on estoppel by convention. The terms of the deeds of grant made it clear that all of the owners intended to give effect to the Plan:

‘The parties having embarked on the development of their respective properties on the basis of this common assumption, they (and their successors in title) cannot be allowed to assert rights inconsistent with it in circumstances in which it would be unfair or unjust to do so.’ (para. 65).

The relevant circumstances were the building of walls and a garage and the building of the road in accordance with the common assumption. Hale LJ thought that both proprietary estoppel and estoppel by convention provided acceptable bases for upholding the first instance decision.

Owner placing advertising hoardings on a common part

November 4, 2011

Hollywood Shopping Centre Owners Committee Ltd v Wing Wah Building Mongkok Kowloon (IO) ([2011] 4 HKLRD 623, CA) concerned a mixed commercial / residential building. There was a DMC for the entire building and an owners corporation (‘the Incorporated Owners’) had been established. Two shops on the ground floor and all of the shops on the mezzanine and first floors were assigned to Gladford Ltd which organised these properties into the Hollywood Shopping Centre (‘the Shopping Centre’). A sub-DMC was set up for the Shopping Centre and Hollywood Shopping Centre Owners’ Committee Ltd was incorporated (not under the Building Management Ordinance) to manage the Shopping Centre (‘the Hollywood Corporation’).

The dispute centred on the use of a canopy which was on the external wall of the building between the ground and mezzanine floors. For some time, owners in the Shopping Centre placed box lights on the canopy. From 2000, the air space between the canopy and the underside of the second floor was used to display huge advertising boards fixed to the external walls of the Shopping Centre. In 2007, the Incorporated Owners objected to this and sought to recover the profits made by the Hollywood Corporation from these boards since they were attached to a common part. At first instance, it was held that the Hollywood Corporation had made use of a common part for the private benefit of itself. This use could not continue. It was also held, though, that the Incorporated Owners had acquiesced in the use of the boards from 2000 to 2007 and so could not recover the profits up to the end of the extant agreement which expired in 2008. There was an appeal by the Hollywood Corporation and a cross-appeal by the Incorporated Owners.

On appeal, the Hollywood Owners claimed to be able to rely on adverse possession in respect of the wall. This failed because there had not been exclusive possession for the full twelve years. They argued that the canopy and walls in question were not a common part. This failed; they had not been included in any assignment to an owner.

They sought to rely on a quasi-easement under Wheeldon v Burrows. This failed because the Hollywood Corporation was not an owner nor (unlike perhaps a corporation incorporated under the Building Management Ordinance) would it be possible to lift the corporate veil between the owners of units in the Shopping Centre and the Hollywood Corporation; hence the Hollywood Corporation had no locus standi.  In any event, there had been no evidence at the trial as to how the canopy was being used at the time of the first assignment of the various units. Without this evidence, the question could not be considered. In any event, as part of its adverse possession claim, the Hollywood Corporation had pleaded that it had not had the benefit of any easement in respect of the canopy. This pleading contradicted the claim to any type of easement or quasi-easement.

The Hollywood Corporation argued that it had an easement on the basis of the doctrine of lost modern grant (after China Field). The Court of Appeal does not seem to have been concerned at the invocation of the doctrine but pointed out that it must be the owners of units in the Shopping Centre who were claiming the easement. The doctrine applies to ‘real’ easements. Since they were also owners of the entire building, there could be no easement.

There could be no question of a permanent waiver (applying Attorney-General of Hong Kong v Fairfax) of the right to enforce the covenant not to convert common parts to private use since the Incorporated Owners did not have the power to do this. Inany event, the acquiescence had been for too short a period. They had, however, acquiesced in the breach until 2007 and could not recover the profits before 2008 when the relevant agreement expired.

E.R. Ives Investment Ltd v High

October 21, 2011

In E.R. Ives Investment Ltd v High ([1967] 2 QB 379, CA (Eng)) D built a house. W built a block of flats on neighbouring land. D noticed that the foundations of the flats encroached onto his land. D and W agreed orally that D could have a right of way over W’s land between D’s land and a road. In return, W could keep the foundations on D’s land. They exchanged letters confirming this agreement. No deed was ever prepared (though the idea of a deed was mentioned in discussions) and D did not register the right of way under the relevant English registration (which provided that unregistered but registrable rights would be void as against later purchasers in good faith). W sold the flats to T. D built a garage on his land that could only be used if the land was approached via the right of way that had been agreed. T approved of the building of the garage. D contributed to the cost of resurfacing the yard over which he had a right of way. T sold the flats to P. The sales particulars and the conveyance to P each made it clear that the conveyance to P was subject to the right of way. P claimed that the right of way was void as against him as it had not been registered. The English Court of Appeal found against P: the right of way was binding on it. It was estopped from denying that it was subject to the right of way,

Common to all of the judgments in the English Court of Appeal is the idea that D enjoyed an equity which bound P. Lord Denning MR thought that there were two alternative bases for this equity. First, the idea of mutual benefit and burden (the owners of the flats could not enjoy the benefit of having their foundations on D’s land and deny that they were subject to the burden of the right of way. Alternatively, W and T (by virtue of their conduct described above) were estopped from denying that they were bound by D’s equity. P took with notice of the equity and so was bound by it. Danckwerts LJ pursued a much more straightforward proprietary estoppel analysis.

The lack of registration was not a problem since the general view of the Court of Appeal seems to have been that this equity was not something that could be registered anyway. It was not a case of a contractual agreement to grant the easement; rather it was a free-standing equity that did not fall into a registrable category and possibly could not be registered at all.

Winn LJ made an interesting suggestion as to how third parties would be bound (his counter-suggestion to Lord Denning’s mutual benefit and burden?):

‘Estoppels arising from representations made by owners of land that rights exist affecting the land will, unless in form they are limited to the duration of the interest of the representor, bind successors to his title.’ (at 405).

It would obviously be unsatisfactory to leave this situation open to the possibility of a later flat owner coming along with no notice of the equity and taking free of it. There was a need for some self-perpetuating solution that would survive changes of ownership.

Did Incorporated Owners have a right to install new pipes in exclusive area?

July 28, 2011

In Cogi Enterprises Ltd v IO of Malahon Apartments ([2011] HKEC 883, CA) the Incorporated Owners had (without Cogi’s knowledge) installed pipes serving the building as a whole in the area owned by Cogi. This had happened after the time when exclusive use of the relevant area had been assigned. The Incorporated Owners claimed that the Deed of Mutual Covenant gave them a right to do so. The DMC reserved to the Incorporated Owners the right to use pipes and so on ‘which now are or may at any time hereafter be in under or passing through the said lands.’ The Court of Appeal rejected the Incorporated Owners’ claim that the word ‘hereafter’ and the fact that the pipes in question served the whole building meant that the right to install new pipes in exclusive use areas fell within the terms of the reservation. This was not, the Court held, what the developer and first owner had intended.

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).

Scope of the right of support from an adjoining building

July 19, 2011

Where one building enjoys a right of support in respect of  its neighbour and that support is removed without adequate replacement then the neighbour can be liable in respect of damage caused to the dominant tenement by wind flows. This is not a separate easement of protection from the weather but an aspect of the right of support. Further, when the owner of one of two adjoining properties demolishes the dividing wall between them he owes a duty of care when he foresees that the demolition will cause damage to the other property. He must take reasonable steps to prevent or minimise the known risk of damage.

Rees v Skerrett ([2001] EWCA Civ. 760, CA (Eng)) concerned two houses 14 and 14A Hastings Street Plymouth. They were divided by an internal wall. It was acknowledged that 14 had a right of support from 14A. 14A was demolished by its owners but nothing was done to shore up the (now exposed) wall to replace the support that 14A had provided. As a result, the flow of wind around the property severely damaged number 14. In Phipps v Pears it had been decided (in a case where there was no right of support) that there was no easement of protection from the weather. Nevertheless, it was decided that the owner of 14A was liable for the damage caused. The right to protection from the damage caused by the flow of wind around the property was an aspect of the right of support. It was also decided that the owner of 14A was liable in negligence. When the owner of one of two adjoining properties demolishes the dividing wall between them he owes a duty of care when he foresees that the demolition will cause damage to the other property. He must take reasonable steps to prevent or minimise the known risk of damage.

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.

CPO s.16 and transfer to lessee

July 16, 2011

Where L has granted leases of neighbouring plots A and B and then conveys his reversion of plot A to the tenant, CPO s.16 has the effect that easements which the tenant of plot A had enjoyed as tenant are thenceforth attached to the reversionary interest and are reserved out of the reversion of plot B. If the tenant of plot B was already subject to those rights (because of an express or implied reservation of them in the lease of plot B) then he continues to be subject to them. If the tenant of plot B acquires the reversion of plot B then it is acquired subject to the reservations implied by virtue of CPO s.16 in the earlier conveyance of plot A.

Kent v Kavanagh ([2006] EWCA Civ 162 Ca (Eng)) concerned a path between two houses (numbers 56 and 58 Dovercourt Road). Long leases of the two houses had been created many decades ago. The boundary between them ran down the middle of the path. Each tenant had an implied right of way over the other’s half of the path. The tenants of both houses had then acquired the freehold reversion of their properties. The question was whether, by virtue of the English equivalent of CPO s.16, the purchasers of 56 (the first of the neighbours to acquire the freehold reversion) enjoyed as freeholders the rights that they had previously enjoyed as tenants. It was held that they did because of the combined effects of the conveyance of the reversion of number 56 and the English equivalent of CPO s.16. Thus, the freehold reversion of number 58 was subject to the right of way in favour of the owners of number 56. The tenants of number 56 continued to be subject to the right of way because it had been impliedly reserved out of the lease to them.  As a matter of general law, however, the freehold of number 56 did not enjoy any right of way over the freehold of number 58 in the absence of an express or implied reservation of such a right.