Easements and Rights of Way

Question 1 Susan has just moved into a substantial home and garden, known as ‘The Grove’. She comes to you for advice on the following matters. In order to settle some bills, she wishes to sell one field known as ‘The Meadow’ for redevelopment. The sale of this field would deprive ‘Blue Cottage’ (in which she houses the second butler) from using the footpath across the field. The sale of ‘The Meadow would not interfere with Blue Cottage’s access to the public main road. She also tells you that she would like to maintain a right of way over the field. Susan then tells you about a different cottage on the estate, ‘Green Cottage’. Susan’s predecessor in title, Joanna, had let Green Cottage to Annie on a five-year lease. This cottage adjoins the gardens to ‘The Grove’. Joanna had told Annie that she could use the swimming pool and tennis court at The Grove whenever she wished. Susan has just renewed the lease for seven years and is concerned that Annie’s many grandchildren were using the pool last weekend and that Annie and her friends have monopolised the tennis court every sunny weekend. She wonders if she can stop them. Advise Susan.

The first issue is whether Susan can maintain a right of way over the Meadow after sellingit.

Easements are proprietary rights attached to the land. Easementary right or benefit is attached to the dominant land. This right or burden is exercised over the servient land. A right of way allows a person to travel through another’s property to get to a different location. In gross easement, the right of way is allowed from one point to another with no rights of ownership. An appurtenant easement is an affirmative easement that benefits the person possessing the adjoining land in terms of use and its enjoyment. This easement sticks with the property owner, in the eventuality that the property owner in case the property should change ownership. By applying the case of Ellenborough Park, the right of way that Susan desires to maintain constitutes an appurtenant easement as Blue Cottage, which is the dominant land and the Meadow, which is the servient land, are adjoining lands. Easement can be acquired by an express grant which is generally created by a deed. This can be implied grant.The rule in Wheeldonstates that if a person transfers a part of their land to another, it may impliedly include a grant of all the rights in the easement that the person used and enjoyed before the transfer. Such rights must be apparent and continuous and also are necessary to enjoy the part transferred. Thesiger LJ explained it as follows:

…on the grant by the owner of a tenement or part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quais easements), or, in other words, all those easement which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.”

In case of sale of a land or lease of a part of the land by the owner, it impliedly grants the buyer the rights previously used for the benefit of that part. Implied easement is also based on necessity and common intention and section 62 of the Law of Property Act 1925. Easement can be by prescription through open and continuous long use without permission.

In the current case, the right of way cannot be created by implied deed, as the sale of The Meadow would not interfere with Blue Cottage’s access to the public main road. It does not satisfy the necessity test. Easement of necessity may be impliedly reserved or granted. Stirling LJ in Union Lighterage Co. stated that an easement will only arise if without it, the dominant land could not be used at all. It will not suffice if it is for reasonable, convenient, or effective use of the land. Thus, the claim to the right of way may amount to personal benefit or advantage, which cannot be an easement right. It cannot be by prescription too either, as the use of the way should have been 20 years at least. Thus, Susan can acquire the right of way only through an express grant. In order for the right of land to become an easement right, Susan must be capable of forming the subject matter of a grant.

Both Susan and the grantee must have necessary capacity and title to create the easement. For that, the scope of the grant must be clear and that the right must be carefully constrained within certain physical limits, which may be a path, as what it is in the current case. Thus, the grant is subject to creating limitations regarding new easements. This express grant should be in the form of a deed, which must be registered. This will constitute a legal easement. Furthermore, Susan must note that as a dominant tenement, she can exercise this easement without interference. The obligation falls on the owner of servient tenement to ensureshe exercises this right without interference.

In regard to the question of whether Susan can stop Annie and her family from using the swimming pool and tennis court in the manner they were using, Susan must first understand whether their right to use these facilities is subject to easement. According to ‘ouster’ principle, rights that could amount to a claim to exclusive or joint ownership are prohibited. Easements are allowed if the exercise of the right leaves enough room for the servient tenement in the remainder of their land. This was applied in the case of Batchelor where it was held that an exclusive prescriptive right to park the car would leave the plaintiff without reasonable use of their land. It cannot constitute an easement. The test is the degree of exercise of the right as above. In the current case, the manner in which Annie, her grandchildren and her friends were using the swimming pool and tennis court was exclusive in nature. Applying ‘ouster’ principle, such use of the swimming pool and tennis court is prohibited. By applying the test of the degree of exercise of the right, Susan is right that the manner in which the facilities are used are monopolistic in nature and it does not leave much room for Susan and the Grove. As such, the exercise of their rights amount to a claim for exclusive or joint ownership, which is again prohibited.

In case of Regency Villas Title,Judge Purle Q.C. held “Re. Ellenborough Park is an authority for the proposition that an easement permitting the dominate owner to walk over all parts of the servient tenement purely for pleasure can exist in law”. He further stated that it is therefore relatively a small step to extend the easement to the enjoyment of sporting and recreational facilities. If the present rights are not vague or excessive wide, they extend to all sporting and other recreational facilities. They have become part and parcel of modern life and they are not merely recreation. Further, agreement between original parties cannot affect third party titles holders and it cannot give rise to an easement.

In the current case, the agreement to allow Annie to use the facilities was between Annie and Joanna, the predecessor in title. As such, this agreement cannot affect Susan’s title. Further, Susan could prove the use of swimming pool and tennis court as being excessive and merely recreation. It cannot, thus, be the subject of an easement.

Question 2 Graham owns a large estate, ‘Smores’, and wants to sell one section of the estate to raise money. He is currently negotiating with Mr. Rix, a local property developer, with a view to selling land to him for the purposes of erecting a number of ‘desirable residences’ for professional people. The land he has in mind is an area called ‘The Square Garden’. ‘The Square Garden’ was bought from Malcolm of ‘Cream Manor’ by Bob (the previous owner of ‘Smores’) and is subject to a covenant entered into by Bob. Malcolm stipulated in the covenant that the land was to be used for agricultural purposes only. Malcom has recently died and ‘Cream Manor’ which is adjacent to ‘The Square Garden’ was purchased from his executors by Vic Dupree, a former singing star who has retired to the country to get away from people.

When Graham mentioned his redevelopment plans to Vic, he told him to go away. Graham wants to know if the covenant is binding on him and Mr. Rix. He tells you that building has taken place on a number of adjacent fields (none of which are, or have been, owned by Malcolm) and that planning permission for the kind of development which he and Mr. Rix have in mind should not be difficult to obtain. Graham also wants to know whether, if the development goes ahead, he can be assured that the general character of the estate will be maintained. Specifically, he wishes to ensure that none of the purchasers will let their houses fall into disrepair, challenge the residential character of the estate or erect more buildings. Mr. Rix has assured him that he is just as concerned about these things as Graham is.

In the current case, it must be determined whether Malcolm and Bob, as parties in the restrictive covenant, directly intended the covenant to run.

The burden of covenant runs in equity. The covenant must be restrictive and be intended to run with the land. The covenant must benefit the land once owned by the covenantee and is currently owned by the claimant or is a part of a development scheme. Whether a covenant is restrictive or not depends on the real meaning of the covenant. The claimant’s land, formerly owned by the covenantee, shall be identifiable. In Rhone, it was held that an owner cannot exercise rights that have never been transferred to her. Lord Templeman held that equity cannot compel a land owner “to comply with a positive covenant entered into by their predecessors without flatly contradicting the common law rule that a person cannot be made liable upon a contract unless he was a party to it.” Lord Templeman, agreed by four other judges, expunged the 'pure principle' of benefit and burden. He held that the burden must be relevant to the exercise of the right in order to apply the doctrine. There must be an opportunity to relinquish the benefit and escape the burden.

Equity only enforces a restrictive covenant if its purpose is to protect the value and amenity of the neighbouring land of the covenantee. This is supported by the case of Cosmichome Ltd. It is enough if what a person enforcing the covenant owns is capable of getting benefit from the agreement. He does not need to own an estate on the land and have bought the entire covenantee’s land. In case covenantee sells the benefitting land, he cannot enforce the covenant. This is supported by London CC, which held that the defendant is not bound in equity or by law by the covenant as the plaintiff did not own any part of the land affected by the covenant, and could not be considered to receive benefits from the covenant. However, even though the defendant was allow to build houses upon the land purchased, Kennedy LJ noted that he was ‘not at all favourably impressed with her [the defendant] conduct as a good citizen’. The benefit is for the land and not the covenantee.

Cream Manor and Square Garden are adjacent to each other. Vic owns Cream Manor, which is identifiable and is capable of receiving the benefits from the restrictive covenant attached to Square Garden, which was intended to be used for agricultural purposes only. In this case, the burden of the covenant runs in equity and so, the document that provides the covenant must be examined of its real meaning. On the other hand, Vic cannot exercise the right in the restrictive covenant, as he was not the one to whom the right was transferred by Malcolm, it was transferred to Bob. The covenant was only intended to benefit Square Garden and not neighbouring land. Graham can buy Square Garden from Bob to ensure that Bob does not enforce the covenant.

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A person interested in the land and affected by the covenant, to apply to the Lands Tribunal for a declaration. The tribunal may discharge or may modify the concerned covenant if it is satisfied of the existence of one of the four ground stipulated in section 84(1). The covenant becomes obsolete due to the changes in the property’s character or its neighbourhood or other circumstance of the case; that if the covenant continues it would obstruct reasonable users of the burdened land for private or public purposes;or that the persons entitled to the benefits of the restrictions have consented to the discharge or modification of the restriction. In such case, the restriction is of no value to the claimant. The Lands Tribunal may discharge it stating that the proposed change will not injure individuals entitled to the benefits. It may order to pay compensation to any successful claimant suffering loss. In Margerison v Bates where the court considered construction of a restrictive covenant after the covenantee disappeared. It held that the demise of the covenantee discharges the covenant; it does not make it absolute.

In the current case, as persons interested in the land, Graham and Rix can make an application under the LPA 1925, s84 to the Lands Tribunal. They can claim that the restrictive covenant has become obsolete due to the changes in the character of neighbourhood. The restrictive covenant is enforceable only if the purpose is to protect the value and/or amenity of the neighbouring land of Malcolm. In this case, building has taken place on a number of adjacent fields none of which are, or have been, owned by Malcolm. Thus, the character of neighbourhood has changed making the restrictive covenant obsolete and of no value to the claimant. Continuing the restrictive covenant would impede the reasonable use of Square Garden. However, erecting desirable residences must not injure any individuals entitled to the benefit. The demise of Malcolm discharges the restrictive covenant. As Vic is not entitled to the benefit of the covenant, there will not be any case of providing him compensation.

The document that provides for the covenant must express that the parties in the restrictive covenant must intend for the covenant to run. Otherwise, it is implied. The covenant must concern and touch the land of the covenantee. Benefits of the covenant pass through annexation, which requires intention of the original parties to the covenant; assignment; or a development scheme. A development scheme allows creating and preservation of new estates. Its conditions must be fulfilled so that restrictive covenants run to all owners governed. In Crest Nicholson Residential (South) Ltd, it was held that the relevant deed must be considered in its entirety along with the surrounding factual circumstances while determining whether there is a limitation on the density of development. In relation to the current case, in case the development goes ahead, the conditions of the development scheme must be fulfilled so that any restrictive covenant or benefits that Graham desires to place could automatically run to all owners covered by the scheme. This will preserve the general character of the estate. The covenant can provide for a limitation on the density of development prohibiting purchasers from erecting more buildings or letting their houses fall into disrepair.

The changes in the character of neighbourhood and the demise of Malcolm have discharged the restrictive covenant attached to Square Garden. Vic was not privity to the restrictive covenant and thus, cannot exercise enforce the restrictive covenant. Graham and Rix can now take further steps according to discussion above in regard to their development scheme

Bibliography

Copeland v Greenhalf [1952] Ch 488

Batchelor v Marlow [2001] EWCA Civ 1051, [2013] 1 WLR 764.

Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410; [2004] 2 EGLR 79.

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Cosmichome Ltd v Southampton City Council [2013] 1 WLR 2436 ((CH)).

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Southwark Roman Catholic Diocesan Corporation v South London Church Fund & Southwark Diocesan Board of Finance [2009] EWHC 3368 (Ch).

Rhone v Stephens [1994] 2 AC 310Vertical Properties Ltd v New 21 Hampstead Garden Suburb Trust Ltd

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