Posts Tagged ‘easements’

Ouster and car parking: applying Batchelor

May 12, 2017

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

May 4, 2017

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 JamiesonMoncrieff 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

October 1, 2016

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

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


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