Legal Analysis of Easement Rights and Permissive Licences in Property Disputes: A Case Study

There are three issues that arise from this situation. The first is whether Raphael can prevent Alba from parking near the manor house, which could be a critical aspect for those seeking law dissertation help. The second is whether Raphael can stop Alba from using the driveway. The third is whether Raphael can prevent Jane from crossing Ravenswood land to access the gate to the right of the manor house.

Each of the three issues relate to the creation of easement rights; in case any of the three rights is not an easement, it may be a permissive licence. It is an easement that will bind the new purchaser as this is a proprietary right; permissive licence will not do so. Two tests have to be satisfied for each of the three situations for these rights to be easements. The first is whether the right claimed is capable of being an easement and the second is whether the right is acquired in a way that can create an easement. This can be assessed on the basis of Re Ellenborough Park judgment, which requires that for there to be an easement, there should be a dominant and servient tenement; the right must be in favour of the dominant tenement; both should be owned by different people; and the right must be capable of being the subject matter of a grant. The right can be created as an easement expressly as in the case of right to use driveway in the case of Alba; or impliedly, which can be the issue with regard to use of parking and crossing over from Ravenwood; or it can be by prescription (use for more than 20 years). In this case, the last is not applicable because no right has been used prior to 2005, which means that prescription is not met with.

With regard to the first issue, that is related to the parking near Manor house, the transfer document registered at the Land Registry does not mention parking but may still be considered to be an easement. The right to park the car in a specific piece of land is capable of being deemed as an easement right as per the House of Lords judgment in Moncrieff v Jamieson and Hair v Gillman. The easement for parking should however not deprive the owner of the burdened land of the benefits of ownership altogether or make the ownership of the land 'illusory' as was held in Batchelor v Marlow. As per the judgment in Moncrieff if the burdened owner retains possession of the land and also has reasonable control of its land, then the easement can be upheld. In Kettel v Bloomfold Ltd, the Batchelor test was applied to consider whether the easement to park had been created in favour of the tenant. The court held that as the owner retained possession as well as reasonable control of the land, the easement can be upheld. Therefore, in this present situation, it can be argued by Alba that she has the easement right to parking in the designated space. The question is whether the fact that it has not been registered impacts the right of Alba. The Land Registration Act 2002, Schedule 3 lists easements as one of the unregistered interests that can override registered dispositions. Therefore, even though not registered, the interest of Alba in the parking space can override the interest of Raphael as the registered owner of the Manor House.

The second issue relates to the granting to Alba the right to use the Ravenswood’s driveway connecting the Lodge to the main road. This is a right of way that was granted to Alba by the previous owner of the Manor House. The law is provided by the Land Registration Act 2002, Schedule 3. Easements are overriding interests under Schedule 3. The easement holder has to establish that the purchaser had knowledge of the easement on the date of the transfer, or could have known about it after careful inspection of the property, or that the easement holder has exercised the right at least once in the year preceding the purchase by the new owner (Land Registration Act 2002, Schedule 3, Para 3). As the right to use the driveway was mentioned in the transfer document by Michael to Alba, this right was within the notice of the new purchaser. Moreover, Raphael can easily ascertain that Alba was using the driveway when he purchased the Manor House. Alba’s right to use the driveway is an easement right that will bind Raphael under the Land Registration Act 2002, Schedule 3 as an overriding interest.

The third issue relates to Jane’s crossing Ravenswood land to access the gate to the right of the manor house. In this situation, as the easement is not created expressly, it could have been created impliedly, but for that Jane would have to establish necessity (Adealon International Corp Proprietary Ltd v Merton LBC) and common intention. This does not appear to be the case as the right was merely to use the land as a shortcut and not necessity. The law related to this can be found in the difference between proprietary and personal rights. Proprietary rights can bind the future purchaser of the land, but personal rights are enforceable only between the grantor and the grantee (National Provincial Bank v Ainsworth; Scott v Southern Pacific Mortgages). In Choudhary v Yavuz, the court has held that personal rights cannot bind the future purchaser of the land. In that case, the court had to consider whether a personal activity of using the stairway led to the creation of a personal right or a proprietary interest in the property by the user. The court held that such interest was personal in nature and not proprietary. Even if there is permission to use the land for the purpose of some personal interest, this would not lead to the creation of a proprietary interest (Ashburn Anstalt v WJ Arnold & Co). The facts of this case indicate that Michael sold the field to the north of the manor house to Jane and allowed Jane to cross Ravenswood land to access a gate to the right of the manor house for a shortcut to the shops. This is not a proprietary interest created in favour of Jane and merely is a personal interest allowed by Michael to make her journey to the shops shorter.

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