You are asked to advise Peter who has just moved into a large house in Hampshire. The house was sold to him by Sachin. Sachin bought the property in 1985. Like Peter, Sachin is a keen car collector. There is a car park area at the front of the house. Sachin says that there is an agreement with the next door neighbour Gill allowing him to park cars on her driveway as she only uses a bike. Sachin also says that the agreement permits him to use Gill’s garden to exercise his dogs. Peter wishes to know if the rights to park his car on the driveway of a neighbouring house and to use the neighbour’s garden are capable of being easements.
This problem question focusses on the application of Re: Ellenborough Park in a problem question. This is the first step in an easement’s question because it determines whether the right is capable of becoming an easement.
The issue is that Peter wishes to know whether the right to park on neighbouring property and the right to use his neighbours garden can be capable of being easements.
The court of appeal set out the defining characteristics for an easement in the case of Re: Ellenborough Park; there are 4 criterion to test whether the right can amount to forming an easement.
- Must be a dominant and servient tenement – In this scenario Peter’s land is the dominant tenement, which means his land will have the benefit of the rights. Gill’s land is the servient land, which carries the burden of the rights.
- The right must accommodate the dominant tenement – This essentially means that the right must benefit the dominant tenement, which in this case is Peter’s. Both Gill and Peter’s land are neighbouring properties, which means that the tenements have sufficient proximity (Bailey v Stephens) . This is important because it means that the Peter’s house is close enough to benefit from the right to park his car on Gill’s land. The right to park is unlikely to be a purely personal right because the right to park would benefit any owner of the dominant tenement.
- The Dominant and Servient owners must be different people – It is not possible to have an easement over two pieces of land that are owned by the same people. In this case the land is owned by two different people – Peter owns the dominant tenement and Gill owns the Servient tenement.
- The right must be capable of forming the subject matter of a grant – The right must be granted by someone with the power to do so, and be made to a person who can benefit from the right. Both Peter and Gill have the power to do this, and the right will be granted by Peter, who will benefit from the right. The right must also be sufficiently definite, and not vague (Browne v Flowers and Aldred’s Case). The right is to park his car onto Gill’s land and use her garden to walk the dogs, which is clear. The right must also be similar in nature to those rights previous recognised as easements in the past. The right to park has previously been recognised as being capable of being an easement (Hair v Gillman). However, the use of the land cannot amount to exclusive possession of Gill’s land and cannot substantially take up the whole of the servient land (Batchelor v Marlow and Copeand v Greenhalf)
Dog walking – The case of Re Ellenborough Park is evidence that the owner of the dominant tenement can walk over the servient tenement for pleasure, but in this case one of the main reasons for granting an easement was the benefit of having a garden to the land. I think that there is an argument to be made about whether dog walking is a purely personal right, in which case could not amount to a valid easement.
In conclusion, it will be possible for the right to park on Gill’s drive to be an easement because it satisfies the criterion in Re: Ellenborough Park. The right to walk Peter’s dog’s in Gill’s garden may be seen as a purely personal right, in which case will not be capable of being an easement, however the facts are similar to Re: Ellenborough Park, which means that they may be capable of becoming an easement.