Jeremy owned the registered freehold title of Oakacre, a large house with an extensive garden.
Jeremy had rented out a self-contained apartment within Oakacre to Bethany and, as a personal favour, he allowed Bethany to use the gardens for recreation. Bethany also parked her car on the driveway.
Last year, Bethany’s lease expired so Jeremy granted her a new five-year lease.
Jeremy has now decided to turn his garden into a tennis court, and has therefore told Bethany that she can no longer use the garden.
Furthermore, earlier this year Jeremy decided that he needed a garage. He therefore obtained planning permission for, and then built, a new double garage on his land. The only means of vehicular access to the garage is over the driveway, and since completion of the garage, Jeremy has prevented Bethany from parking her car on the driveway.
Jeremy is delighted with the new garage, but a neighbour is claiming that it prevents her from using a shortcut across his garden to get to a nearby park. The neighbour has told Jeremy that she has been using the shortcut regularly since she bought her house in the mid-1990s. Jeremy tells you that he had noticed her doing this, but did not object because he could not be bothered.
Advise Bethany and the neighbour whether they have any grounds for complaint against Jeremy. Support your answer with relevant case law and statute.
The first issue is whether the right to use Jeremy’s garage and the right for Bethany to park her car on Jeremy’s driveway are capable of becoming easements. The courts have developed a four limb test, which comes from the case of Re Ellenborough Park:
- There must be a dominant and servient tenement – this means there must be two pieces of land. One must benefit from the right over the burdened land, which is the name given to the servient tenement.
- The right must accommodate the dominant tenement – This essentially means that the right must benefit the dominant land, and not be a merely personal right.
- The dominant and servient tenements must be owned by different people – This simply means that one person cannot own both pieces of land to create an easement. They may have a quasi – easement, but cannot have an easement is they own both pieces of land.
- The right must be capable of forming the subject matter of a grant – This essentially means that the right must be specific, relate to land and be capable of being condensed into writing to form a deed.
In the case of Bethany using the gardens for recreation:
The dominant land is being leased to Bethany and is the self contained apartment in Oakacre. The servient land is owned by Jeremy and is Oakacre.
The right must accommodate the dominant tenement, which means the right must benefit the land as in Moody v Steggles and not be a purely personal right as in Hill v Tupper. The land must also have geographic proximity in as shown in Bailey v Stephens, but this doesn’t necessarily mean that the property is adjacent, as in Pugh v Savage.
In this scenario the dominant and servient land have proximity as the dominant land is a self contained apartment. The right could be personal though, in Re Ellenborough Park the right to use a communal gardens was accepted as an easement, but this added the value of using a garden to a flat that had no access to one. There is also an issue that Bethany’s right is purely recreational, but the right must be more than purely recreational as Dyce v Hay suggests. I do believe that this right would enhance the land overall for any owner of the land because of the recent case of Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd  EWCA Civ 238 where the court focussed on whether the utility of the dominant tenement would be improved by the right.
Clearly Jeremy and Bethany are different people, which satisfies the third limb of the test.
The right must be capable of forming the subject matter of the grant can be divided into 5 subheadings:
- The person must have capacity
- The right must be for the benefit of a specific piece of land
- The right cannot be too Vague as in Aldred’s Case and Broome v Flower
- The easement must not require the burdened land to spend money – Regis Property Co Ltd v Redman  2 QB 612
- Must be similar to existing easements – Dyce v Hay
Jeremey has the capacity to grant the easement as it is over land he owns. The land is the gardens of Oakacre, which is very specific and not vague. The easement will be for Bethany to use the gardens for recreation. There is nothing to suggest Jeremy would have to spend any money and is similar to already existing easements, as in Re Ellenborough Park.
The right to use a communal garden is capable of becoming an easement because it satisfies the test above, and is similar to those easements that already exist.
Bethany Parking on Jeremy’s Driveway:
The dominant land is owned by Bethany and is the self contained apartment, the burdened land is owned by Jeremy which is Oakacre.
The right must accommodate the dominant tenement. The right to park your car on a driveway would add a benefit to the land, but there is the risk that the right becomes too excessive and amounts to exclusive possession. Batchelor v Marlow has produced a substantial interference test which has been criticised in the case of Montcrief v Jameson. This case proposed that the test should be whether the servient owner retains overall control of the land. Despite these criticisms Virdi v Chana has confirmed Batchelor v Marlow, and the test is whether the parking interferes with substantially the entirety of the land. The right to park has been recognised and validly created in the case of Hair v Gillman because the land had enough space for four cars, and only one space was used.
In this situation we are not told the size of the driveway, but so long as Bethany parking her car on the land doesn’t substantially interfere with the land, the parking easement is likely to be granted.
The right must be capable of forming the subject matter of a grant. In this situation Jeremy has the capacity to grant the easement over his driveway. The land is specified to be the driveway, which is clear and not vague. The right is also similar to easements already created as in Hair v Gillman.
From the Re Ellenborough Park test above the right to park on Jeremy’s driveways will be capable of becoming an easement, as it is also similar to easements already in existence.
The next stage of this question is to determine whether these rights have been acquired. In order to do this there are several different methods available. From the question, we can see that there has not been a clear express grant of an easement following the requirements of it being made by deed in The law of Property Act 1925 S52. Therefore we have to look at the types of implied grant available. The right to use Jeremy’s garden will be most suited to looking at implied grant through S62 of the LPA 1925. This is because S62 LPA 1925 has the effect of turning licenses into easements upon the transfer of land.
The law of Property Act 62 operates to convert a license into an easement upon the transfer of land, this provision can be expressly excluded in the contact of sale, but there is no evidence of this. Jeremey did not revoke the permission to use the garden prior to renewing Bethany’s lease, this has the effect of converting the license to use the garden into a fully fledged easement. Jeremy cannot have his tennis court until Bethany leaves when he can possess the land again and remove the easement through unity of sesin. The fact are similar to the case of Wright v Macadam or International Tea Stores, where licenses were upgraded.
Bethany can also continue to park her car because the license was not revoked prior to the lease being renewed, so long as it doesn’t substantially interfere with the servient land owners use.
The next issue is whether the shortcut has been acquired by prescription. There are three requirements for this to happen:
- The easement must be over freehold land
- Must be for a minimum of 20 years uninterrupted use
- The use must be as of right
As of right encompasses use without force, without secrecy and without permission. Once these requirements are met the next stage is to look at whether the servient owner has acquiesced to the right. This can be shown in three ways, which comes from the case of Dalton v Angus Shields:
- A knowledge of the act done
- The power to stop those acts or take legal action
- The abstinence to use that power.
If the servient land owner has the power, but fails to take any action then the right will become an easement after 20 years of uninterrupted use.
In this situation the neighbour has been using the shortcut since 1995, this means that she has been using it for over 20 years, and she is the freehold owner of her land. The neighbour has been using the shortcut without secrecy as the question says Jeremy has seen her using the shortcut, it wasn’t unknown to him as in Barney v BP Truckstops Ltd  CLV 1854. The neighbour hasn’t used force as there was no barrier or threats when using it as in Dalton v Angus Shields. The neighbour also never had permission to use the shortcut, unlike in Green v Ashco. Jeremy has also acquiesced to the use because he knew about the neighbour using it, had the power to stop it and didn’t.
The Prescription Act 1832 S2 provides two kinds of prescription, however in this situation the shorter period of time is relevant. This act will prescribe an easement where there has been 20 years uninterrupted use for a year or more and the user must be as of right. The neighbour has been using the shortcut as of right, which indicates that the right will be prescribed as an easement and the neighbour will be able to continue using the right of way.