Archive for the ‘Implied easements’ 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

Advertisements

Implied grant of easements

July 6, 2016

In Collins v Collins (No 2) ([2015] EWHC 2652; [2016] 2 P & C.R. 6) a mother and father executed a deed of trust of agricultural land. The beneficiaries were themselves and their three sons. At the time that the trust was created, it was contemplated that the land would be converted to commercial use. This contemplated change of use subsequently happened. The timing of the deed of trust was partly motivated by tax planning considerations which meant that the value of the land needed to be transferred to the beneficiaries. To the extent that any value was retained by the parents, the tax planning purpose would be frustrated.

The deed of trust was extremely simple. The subject matter of the trust was a parcel of land. There was no express grant of a right of way over a private road on the parents’ retained land yet the land subject to the trust was landlocked without the necessary easements over the roadways owned by the parents. It was now intended that the trust land should be sold to a third party but the potential buyer would only proceed if it could be shown that the trust land had the benefit of the necessary rights of way. Because there was a family dispute, the parents did not now want to grant such rights of way. Thus, the question was whether the necessary easements could be implied into the deed of trust.

In his judgment, Mr Edward Bartley Jones QC thought that an easement could be implied into the deed of trust by any of several routes. Whatever the chosen route, the starting point was to identify the subject matter of the grant, applying the general law on contractual interpretation as recently re-stated in Arnold v Britton ([65]). On the facts of this case, the parents intended to make a gift of the whole equitable interest in land which was intended for commercial purposes ([69]). The principle of non-derogation from grant could be relied upon as the basis for implying the necessary easements. It extends even to the grant of non-proprietary, contractual rights and so the fact that the parents were owners of both the dominant and servient tenements was no obstacle to the application of the principle here ([73]).

Equally, the easement could be one of common intention applying the principles in Pwllbach Colliery. The common intention was that the land should be developed for commercial purposes and a full vehicular right of way was necessary to give effect to the common intention ([74] – [78]. Even though the beneficiaries had only an equitable interest, whether the right of way was legal or equitable depended on the intention of the parties ([79] – [80]). It did not matter that the parents were owners of both the dominant and servient tenements. The right of way would subsist as a quasi-easement until the sale took place and the necessary diversity of ownership was in place. At that time section 62 of the Law of Property Act (equivalent to section 16 of the Conveyancing and Property Ordinance) would pass on the benefit of the already existing easement. In the process, the quasi-easement would become an enforceable easement ([83] – [85]).

Could it be argued that the easement was intended to be a right for vehicular access for agricultural purposes only. To answer this question involves answering the two questions posed by Neuberger LJ in McAdams Homes Ltd v Robinson: would the use for commercial purposes be a radical change in character of the contemplated use rather than a mere intensification; and would this use impose a substantial increase or alteration over the intended burden imposed on the servient tenement? ([61]). Here the parties had intended that the land would be converted to commercial use at the time of the deed of trust. The fact that the commercial development had been (perhaps unexpectedly) very successful only intensified the intended use. The McAdams questions could be answered in the negative.

Any buyer from the trustees would have an easement conferring the right to use the road for vehicular access to and from the commercial development.

Michael Lower

 

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).

CPO s.16 only operates where the right claimed had actually been exercised

July 12, 2011

Payne v Inwood ((1997) 74 P & CR 42 CA (Eng)) concerned a dispute between two neighbours, the owners of 1 and 1A Teign Terrace (adjoining terraced houses). 1 Teign Terrace was the end of the terrace. The owners of 1A claimed that they had an easement across the rear of number 1 to get to the rear of 1A. There was a gate in the fence between 1 and 1A. This had been made by the owner of number 1 to make it easier for him and his neighbour to visit each other. For a short time, 1 and 1A were in the common ownership of Miss C and this had the effect of extinguishing any easement that might have existed over 1 for the benefit of 1A. There was no evidence that at that time or subsequently the owners of 1A had gained access to the rear of 1A over the rear of 1. Thus, there was no existing privilege that could pass by virtue of the combined operation of the English equivalent of CPO s.16 and the conveyance of 1A by Miss C. CPO s.16 does not create new rights but is a conveyancing mechanism to pass on (in appropriate cases) such rights as may already exist.

Reserving easements: don’t forget!

July 11, 2011

Holaw (470) Ltd v Stockton Estate Ltd ((2001) 81 P & CR 29) concerned two neighbouring properties (A and P) originally in the common ownership of CIS and each let to a different tenant. The lease of P included a right of way over A. CIS sold A without reserving a right of way for the benefit of P. It then sold P. The lease of P expired and was renewed. The question was whether the new lease could include the right of way over A. It was held that it could not. The fact that a lease is being renewed does not mean that it will include the same easements if the landlord is no longer capable of granting them. There was no implied reservation on the basis of a common intention because the criteria specified by Jenkins LJ in Re Webb’s Lease were not satisfied. On the facts, the claim for rectification of the conveyance of A also failed.

Exceptional case of an implied reservation

July 8, 2011

The burden of proof is on the person claiming an implied reservation of an easement. The test is whether the circumstances raise a necessary inference of an intention common to both parties that a right of way should be reserved.

Peckham v Ellison ((1993) 31 H.L.R. 1030, CA (Eng)) concerned two neighbouring houses that formed part of a terrace of council houses (houses owned by the local authority and available for rental). They had been built in the 1940s and from the beginning the tenants of number 16 had exercised a ‘right’ of way not expressly granted to them to use a path on the land forming part of number 15 to get to the back door of number 16. In the 1980s the tenants of both houses bought them from the local authority. Number 15 was sold first and there was no express reservation of any right of way over the path leading to the back door of number 16. The question was whether there had been an implied reservation. It was held that this was one of those exceptional cases in which an easement had been impliedly reserved.

The Court of Appeal applied the test propounded by Jenkins L.J. in Re Webb’s Lease: did the circumstances raise a necessary inference of an intention common to both parties that a right of way should be reserved? The burden of proof  is on the person claiming that an easement had been impliedly reserved to show that the facts are not reasonably consistent with any other explanation.

Here the test was satisfied. The Court of Appeal pointed to a number of exceptional circumstances such as the long-held belief on the part of the tenants (and later the owners) of both houses that such a right existed.

When will an easement be impliedly reserved?

June 30, 2011

There are exceptional cases where an easement will be impliedly reserved (necessity and common intention). There is no implied reservation on the basis of common intention unless it is shown that the facts are only reasonably consistent with such a common intention.

In In Re Webb’s Lease ([1951] Ch. 808, CA (Eng)) L granted a lease of two floors of a building to T in 1939. L carried on business on the ground floor of the building. L had advertisements on the outside of the building (one of which was for his own business). In 1949 L granted T a 21 year lease of the same premises. He did not expressly reserve any right to display the advertisements. He claimed an implied reservation but failed because of the second limb of Wheeldon v Burrows (a grantor has a duty to expressly reserve any rights he intends to claim as against the grantee). L could only succeed if he could show that the facts were not reasonably consistent with any other explanation than an implied reservation. Here it was equally plausible to suggest that L was a licensee.

CPO s.16 and licences

June 27, 2011

Where land is in common ownership but separate occupation and the part not occupied by the owner has the benefit of a licence that could be recognised as an easement then a later grant of the separately occupied land will (in the absence of a contrary intention) result in the implied grant of an easement in the same terms as the licence. This is because of CPO s.16.

In International Tea Stores v Hobbs ([1903] 2 CH 165) D owned two adjoining houses. One was let to P’s predecessor in title. D allowed P’s predecessor and P to cross the yard on D’s retained land to get to a door.  P later bought the freehold of the leased property. It was held that, by virtue of the English equivalent of CPO s.16, the conveyance to P had included an implied easement entitling P to cross D’s land to get to the door. Farwell J. said that it was enough to show that at the time of the conveyance the right of way was used and enjoyed with the property conveyed (at 169).

The rule in Wheeldon v Burrows

June 24, 2011

When a landowner sells off part of his land and retains part, the conveyance will impliedly grant all the continuous and apparent easements over the retained land necessary for the reasonable enjoyment of the land sold. There will be no retained reservation of easements over the land sold for the benefit of the retained land (save in exceptional cases such as easements of necessity).

In Wheeldon v Burrows ((1879) L.R. 12 Ch. D. 31 CA (Eng)) T sold part of his land to W and retained part on which a workshop stood. T later sold the retained land with the workshop to B. The workshop received its light through windows that opened onto the land sold to W. W erected boards at the boundary between the two plots of land to stop the flow of light to B’s workshop and B knocked them down claiming he had an easement of light over W’s land.

Thesiger LJ (at 49)  laid down two propositions, the first of which has come to be known as the rule in Wheeldon v Burrows. First, when a landowner sells off part of his land and retains part, the conveyance will impliedly grant all the continuous and apparent easements over the retained land necessary for the reasonable enjoyment of the land sold. Second, there will be no retained reservation of easements over the land sold for the benefit of the retained land (save in exceptional cases such as easements of necessity). Both propositions, he said, rested on the maxim of non-derogation from grant.

Thus, the timing of the two sales was important. There could be an implied grant in favour of W (the first to buy) but not in favour of B (who bought later). W succeeded. There was no implied reservation of an easement of light in favour of B.