Gordon was the registered freehold owner of three adjoining houses, West View, Middle Row and East View. Gordon lived in West View; Middle Row was empty, and he rented East View out to tenants. Gordon used to use a short cut across the garden of Middle Row when he walked from West View to the nearby newsagent. He also used to park one of his cars in the drive of Middle Row.
Gordon originally leased East View on a one year lease to Glenda, and during the term of that lease Gordon had allowed Glenda to store garden furniture in a shed on Middle Row. After the original lease expired, Gordon granted Glenda a new five year lease of East View by deed.
In 2015 Gordon sold and transferred West View to Brian, and moved into Middle Row. He told Brian to stop using the access across Middle Row and to stop parking vehicles in the parking space on Middle Row.
Gordon also told Glenda to remove her garden furniture from the shed on Middle Row.
(a) Advise Glenda whether she can still store her Garden Furniture on Middle Row; and
(b) Advise Brian whether he can continue to use Middle Row for the purposes mentioned.
The first issue is whether Glenda’s right to storage is capable of being an easement. The court of appeal has determined a test from the case of Re Ellenborough Park, which determines the characteristics that make a right capable of becoming an easement. The case outlined four requirements:
- There must be a dominant and servient tenement.
- Must accommodate the dominant tenement (benefit the dominant tenement).
- The Dominant and servient tenement owners must be different people.
- The right must be capable of forming subject matter of grant.
In this scenario Glenda owns the dominant tenement, which is the land that benefits from the right on servient land. Gordon owns the servient tenement, which is the land burdened by the right. This statement also outlines that both the dominant and servient tenements are owned by different people.
The right of storage on Gordon’s land will benefit future owners of the dominant land, so is likely to not be a purely personal benefit; the right will benefit the land. Both Gordon and Glenda’s houses are neighbouring, which means that there is sufficient proximity for the storage right to benefit Glenda’s land (Bailey v Stephens).
Gordon has the power to grant an easement and to Glenda who will benefit from the easement. The right has also been sufficiently defined and is not vague (Aldred’s Case), it is clear that Glenda wants an easement of storage on Gordon’s land. The right to storage has also previously been previously recognised as being capable of being an easement (Wright v Macadam). The right cannot amount to exclusive possession of the land or substantially take up the whole of the servient land (Copeland v Greenhalf).
The right of storage can be recognised as being capable of being an easement. The test above proves that this is true, as well as previous case law affirming that the right to storage is capable of being an easement.
The next issue for Glenda is whether the easement has been acquired. There has clearly not been an express grant of the easement from Gordon to Glenda, which means we have to look at how an easement is granted through implied grant. The most likely mechanism to grant the easement of storage is a statutory one under The Law of Property Act 1925 S62.
The LPA S62 seeks to convert a license into an easement upon the transfer of land. In Glenda’s situation S62 could operate because she is renewing her lease, which indicates she has a legal estate and is enjoying extra additional rights to those contained in her lease. Glenda’s situation is similar to Wright v Macadam where the landlord allowed the tenant to use a coal shed on the landlords property, but because the landlord failed to revoke this right or exclude the provisions of the LPA S62 by virtue of LPA S62(4). This meant the tenant could continue to use the coal shed as the license was converted into an easement, and furthermore the landlord could not charge her extra rent for its usage.
Gordon has not revoked her right to storage that he gave a license for her to do, which means that upon renewing the lease, the second lease operates under the LPA S62. This means that Glenda has a legal easement to use Gordon’s land for storage. The question doe snot specify whether the lease excludes the provisions in S62, so it is imperative that Glenda checks her lease carefully.
The next issue is whether the right of way across Middle Row’s shortcut and the right of storage to park his car on the Driveway are capable of being characterised as Easements. The Court of Appeal established the characteristics of an easement in Re Ellenborough Park:
- There must be a Dominant (The owner of the land that benefits from the easement) and Servient tenement (The owner of the land that bears the burden of the easement)
- An Easement must accommodate (benefit) the dominant tenement
- Dominant and servient owners must be different people
- A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant
The dominant land is owned by Brian and the servient land is owned by Gordon, this statement meets two of the characteristics of a right capable of being an easement because it also states that the servient and dominant tenements are owned by different people.
The easement must accommodate the dominant tenement. The right of way would benefit the dominant land because it offers a shortcut, which any owner could use. A right to park and store on Middle Row will benefit Brian’s land, and not just confer a personal right (Hill v Tupper). Both the dominant and servient land are neighbouring, which means that the right will benefit Brian’s land because it is close enough to benefit from the right (Bailey v Stephens).
The right must be capable of forming the subject matter of a grant. The right of way appears to be defined and is not vague unlike a right to privacy (Aldred’s case). The right to storage / parking is also not vague, but it cannot be so excessive that it deprives the servient owner from using their land (Batchelor v Marlow) – in this case parking 6 cars on and that could only hold 6 was deemed excessive and made the servient owner’s land illusory. This was upheld in Virdi v Chana. The right to park cars has been successfully recognised though, in the case of Hair v Gillman. This is a question of degree, so Brian may be able to park on Gordon’s driveway, but it cannot use up too much space and cannot deprive Brian of its use. Both these rights are also similar to those that already exist in the law.
To conclude from the Re Ellenborough Park test it is clear that both the right of way and right of parking are capable of being valid easements. This has been shown by the above test and these rights already exist in the law as easements.
The next issue is how the easements have been acquired. There has been no express grant mentioned in the question, so I will look at implied grant.
Brian may have acquired the easements under the rule in Wheeldon v Burrows, the rule requires three components:
- The right must be continuous and apparent
- The right is necessary for the reasonable enjoyment of the land sold
- The right was in use at the time of the sale and immediately prior to it
The shortcut would appear to be continuous and apparent because presumably there is evidence of the shortcut existing, such as a worn path or a gate. The right was also being used at the time of the sale by Gordon and immediately prior to it. The main issue with the shortcut is that it may not be necessary to the reasonable enjoyment of the land because there may be an alternative route which is more convenient (Wheeler v Saunders). If there is not a more convenient route then I would suggest that the right of way will be acquired as an easement, so Gordon could not instruct Brian to stop using it.
The right of parking will have been continuous and apparent because presumably there is the driveway, which can be seen to have been used by Gordon. The right was also being used at the time of grant. However, the main issue is whether the right is necessary for the reasonable enjoyment of the land sold. This would depend on if there was any other nearby parking available to Brian.
The law of Property Act S62 is not applicable on the facts of the situation because prior to selling west view to Brian, Gordon owned both pieces of land, which meant that the part sold was not in separate occupation to the part retained by Gordon. If Gordon did not own both properties then the S62 provisions could have been applicable.
The case of Platt v Crouch widens where S62 can be applicable. This case suggests that S62 is capable of being used instead of Wheeldon v Burrows where the right is continuous and apparent, and can be used even when there is no diversity of occupation. In other words, this case would mean that Brian could use the provisions of S62 instead of Wheeldon v Burrows to secure the implied grant of the easements. Platt v Crouch has been affirmed by Wood v Waddington, and can be useful as it could remove the requirement that the right is necessary for the reasonable enjoyment of the land.
For Brian, using Platt v Crouch would mean that both the rights of parking and right of way over Gordon’s land could become legal easements, and this means that Gordon cannot prevent Brian from using the rights. However, if Gordon has excluded the provisions of S62 by virtue of S62(4) Brian will be unable to use S62 to acquire the easements, and this will mean that Wheeldon v Burrows will have to be used. This carries the risk of the easements not being successfully acquired because the rights may not be necessary for the reasonable enjoyment of the land.
To summarise the points above:
Glenda – Has an easement of the right to storage of her garden furniture on Middle Row
Brian – Using the LPA S62 and Platt v Crouch will be capable of having the easements of right of parking and right of way to the shortcut. If Brian uses Wheeldon v Burrows he may still be successful, however there is the risk that there may be an alternative, more convenient way instead of the shortcut and there may be close by parking places, which will mean that both easements do not satisfy the requirement that they are for necessary for the reasonable enjoyment of the land.