Ouster' Test on Determining Easements for Parking

Q2: 1512

Introduction

Lord Scott recognised the ouster principle where he stated that a right that is too extensive and prevents a reasonable use of a servient land, it cannot create an easement (Moncrieff v Jamieson [2007] UKHL 42., 2007, p. 47). The courts have used the “roughly hewn and oft maligned, ‘ouster’ test” so as to assess the degree of the owner’s residual use (Haley, 2021, p. 3). In this context, this essay will assess the effect of the ‘ouster’ test on the determination of whether or not the right to park or store could become an easement. If you are seeking insights on this subject, seeking professional guidance from experts in the field, like UK dissertation help, can be said to be invaluable.

Right to park or store – an easement right

In concerned with the issue of right to park, applying the ouster principle, even if the claimant had exercised the right to park every working day on a land for nine and a half hours, this right cannot form an easement (Batchelor v Marlow [2001] EWCA Civ 1051. , 2001, p. 8). The owner would be left without any reasonable use of their land, whether for parking or any other use (Batchelor v Marlow [2001] EWCA Civ 1051. , 2001, p. 8). The owner’s right to use the land will be altogether curtailed for the intermittent periods throughout the week making the ownership illusory.

In easements, an owner has the right to use the land belonging to another in a prescribed manner. The right may also be described as the right to restrict such use made of the burdened land (Churston Golf Club v Haddock [2018] 2 P. & C.R. 3, 2018). Thus, it is a third- party interest and in order to understand its implication, it is necessary to understand the difference between easements and the possessory interests, which are to be mutually exclusive (Haley, 2021, p. 1). However, the differentiation is often found to be at cross-road, mostly associated with the legal principles surrounding whether the right to parking can create easementary right. Taking a more extended view of the principle in Batchelor, Lord Scott in (Moncrieff v Jamieson [2007] UKHL 42 , 2007) held that the question is whether or not the alleged easement will deprive the owner of their possession and control of their land (Moncrieff v Jamieson [2007] UKHL 42., 2007, p. 59). Thus, any easement that does not grant an exclusive possession should be valid notwithstanding that the easement will deprive the owner of the reasonable use. This principle has expanded the application of easement. The condition is that it should not provide for an exclusive possession. This brings certain clarification in regard to differentiating between easements and the possessory interests.

Whether or not a right to park can turn into an easement depends on the questions of “fact, degree and nuanced judicial reasoning” (Kettel v Bloomfold Ltd [2012] EWHC 1422 (Ch)., 2012). Lord Evershed M.R., held in (Re Ellenborough Park [1956] Ch. 131 , 1956) that the question, however, should exclude considering claims regarding the amount to rights that would substantially deprive an owner their proprietorship or legal possession (Re Ellenborough Park [1956] Ch. 131 , 1956, pp. 160, 164). The courts principles, following Batchelor and Moncrieff, do seem to offer certain clarity, but still offer confusing on the differentiation between easement rights and exclusive right to possess or use.

This finds support in Lord Neuberger’s opinion in (Moncrieff v Jamieson [2007] UKHL 42., 2007, p. 22) that a right to park will be difficult to be accepted as an ancillary to a servitude of access as it is in its own right unacceptable. His opinion focuses on “necessity”. He opined that a right is implied as: i) it is necessary to comfortably enjoy or to conveniently and comfortably enjoy the severed hereditament; and ii) it is ‘reasonably necessary’ to exercise or enjoy an express grant. The latter implied right must be ‘reasonably necessary’ as otherwise without necessity, it will create possibly impose an uncovenanted burden on the owner and without reasonableness, it will impose upon the dominant owner (Moncrieff v Jamieson [2007] UKHL 42 , 2007, p. 112). In regard to the former implied right, the test is on reasonableness as is mentioned above.

The issues seems to with the problem of establishing a test that could determine whether parking rights have necessary elements of easement. The four-stage test is one of the tests. It was laid down by Lord Evershed M.R. in (Re Ellenborough Park [1956] Ch. 131 , 1956) that requires the right to be in grant. This is whether the difficulty in determining the question arises. His fourth condition requires the right over land to form the subject matter of a grant in order to amount to an easement. This has led to the principle that if right is indefinite or vague, it cannot be enforceable by the courts. Any exclusive or unrestricted use of a piece of land cannot create an easement (Reilly v Booth (1890) L.R. 44 Ch. D. 12 , 1890, p. 26). Thus, it is recognisable that the problem is establishing a definite test. Even the Law Commission reflects on this problem when they expressed their doubt over selecting the appropriate language between exclusive’ or ‘unrestricted’ (Commission, 2011). Thus, the righty claim is lacking in definition.

In (Moncrieff v Jamieson [2007] UKHL 42 , 2007, p. 2663), Lord Neuberger opined that it will be a challenge to justify an effectively exclusive right to store any material that is not an easement. If such right is granted an easement it will convert an occupational licence into an interest in land. Similarly, in (Copeland v Greenhalf (1952) Ch 488, 1952), Greenhalf claimed a right to store vehicles that are awaiting repair and collection on Copeland through easement by long use. The court held that although a right of storage could have existed as an easement benefiting the land and not only Greenhalf business, rights claimed in this case cannot be easement as the use is too extensive to be an easementary right. The right claimed will ouster Copeland from their beneficial enjoyment of her land. In this context, if however the right is impliedly granted, should not there be an implied easements?

Implied easements are created through parties’ common intention at the time of the grant. This is supported by the case ruling in (Wheeldon v Burrows (1879) LR 12 Ch D 31 , 1879), which basically requires a grant to use and enjoy a part of the tenement to create an implied easement. The grant passes all continuous and apparent easements necessary to reasonably enjoy property granted. Such easements should have been used for entirety for the benefit of the property granted at the time of the grant. Thus, the intention is necessary either for the general use of the land or for the use intended by both the parties. Section 62 of the Law of Property Act 1925 also provides for such implied terms in a conveyance of land (s62(1) or land with houses and other buildings (s62(2), which shall be deemed to include rights and advantages, including easements. However, Section 62 does not grant a person any better title, right, or thing other than the title provided in the conveyance (s62(5)). This means that if the conveyance does not grant the easement, there will not be any easement. This could be seen in the case of (Grigsby v Melville [1974] 1 WLR 80 Court, 1974), which concerns the right to store goods in cellar. The cellar belongs to the Claimant. It the cellar ran the claimant’s property. Its entrance is under the property of the defendant, who has been using the cellar. The concerned conveyance to the claimant excepted and reserved ‘rights and easements or quasi-rights and easements as may be enjoyed with the adjoining property’. The court held that the claimant’s ownership of his property includes the cellar as is provided in the conveyance. There was nothing that saw an implied easement granting rights to the defendant.

Similar to the right to parking, the right to storage cannot create an easement unless it is exclusively granted by the owner. Here lies the difference with exclusive use, as sole use does not prevent the owner from using the store for their own purposes, which do not interfere with the claimant’s reasonable use for storage, which does not create any possession (Wright v. Macadam [1949] 2 KB 744, 1949, p. 55). It would have been otherwise if the use was exclusive, which is a superior right.

Conclusion

To conclude, the inconsistent principles of ouster principle with its inability to determine the degree of exclusivity has led to confusion about evaluating rights granted over a land. As seen earlier, the principle has left it uncertain to determine whether a right to park or to store goods can be recognised as an easement. There are competing interests between the claim of exclusive rights and the degree of use and control retained by the owner that defines a satisfying existence of an easement. The ouster principle cannot be the best mechanism as the right of the owner does not seen to be exclusive or exclusionary.

Bibliography

Moncrieff v Jamieson [2007] UKHL 42. (2007).

Batchelor v Marlow [2001] EWCA Civ 1051. (2001).

Churston Golf Club v Haddock [2018] 2 P. & C.R. 3 (2018).

Haley, M., 2021. Parking Rights and Conceptual Wrongs: The Ouster Principle Revisited. In: ssues in Modern Land and Property Law: Essays in Memory of Professor Mark Thompson. s.l.:Hart Publsihing.

Moncrieff v Jamieson [2007] UKHL 42 (2007).

Kettel v Bloomfold Ltd [2012] EWHC 1422 (Ch). (2012).

Re Ellenborough Park [1956] Ch. 131 (1956).

Re Ellenborough Park [1956] Ch. 131. (1956).

Reilly v Booth (1890) L.R. 44 Ch. D. 12 (1890).

Commission, T. L., 2011. Making Land Work: Easements, Covenants and Profits a Prendre: Law Com. No.327, [3.193]. s.l.:s.n.

Copeland v Greenhalf (1952) Ch 488 (1952).

Wheeldon v Burrows (1879) LR 12 Ch D 31 (1879).

Grigsby v Melville [1974] 1 WLR 80 Court (1974).

Wright v. Macadam [1949] 2 KB 744 (1949).

Q4. 1468 words

Introduction

It is necessary to understand in brief the objective of the enacting the Landlord and Tenant (Covenants) Act 1995 (“Act 1995”) in order to address the question in hand. Before the Act 1995, the liability of original covenantors continued to survive after a lease assignment or the reversion, which favoured the landlords and was considered unfair. Thus, the objective of the Act 1995 was to address such bias continuity of liability by extending better protection of tenants’ right after the lawful assignment of their leases. In this context, this essay will review the relevant provision of Act 1995 to assess its impact on the interests of the tenant at the expense of the landlord’s common law rights.

Review of the key provisions

For the purposes of the Act 1995, Section 28(1) defines “assignment” as an equitable assignment and an assignment breaching a covenant of a tenancy or by operation of law. The Act 1995 applies to both the landlord covenant and the tenant covenant, which are defined as a covenant not complying with by a landlord of premises demised by a tenancy or by a tenant of premises demised by a tenancy respectively. The purpose of applying the Act 1995 to both the landlord and the tenant is to address the issue of continuity of liability of original covenantor after the lease assignment or reversion. This Act 1995, thus, remove the privity of contract whereby it releases a tenant who has lawfully assigned a lease from any further liability (Scarrett, 2010).

Although, the Act 1995 allows assignment of the covenant, it however does not release the tenant for covenants expressed as personal to the tenant (Scarrett, 2010). This is provided in Section 3 of the Act 1995. Section 3(1) states that all the benefit and burden of the parties in the tenancy are annexed to the premises demised by the tenancy or the reversion and are transmitted on assignment of the premises. However, Section 3(4) excludes covenants personal not allowing transmission of benefit and burden of personal covenants. In (Edlington Properties Ltd v JH Fenner & Co Ltd [2006] EWCA Civ 403 , 2006)], the court denied the tenant’s attempt to set off the original landlord’s claim for against the claim for rent by the new landlord by ruling that the tenant’s liability to pay the damages for the breach of covenant does not run with the reversion. This means that the tenant can still be bound to the covenant even after the lawful assignment. However, the provision of Section 3(4) applies to landlord as well whereby he will also remain bound to personal covenants after assignment. Similar neutral provision that is applicable to both the parties are provided, for example, Section 3(5) that provides for enforceability of the covenant against the assignee as well as any person who is the owner or occupier of the premises even when the covenant does not contain any express provision to that effect.

If it had to be compared between the landlord and the tenant in regard to the impact of the Act 1995, it may not be considered unbiased in regard to continuity of tenant’s duties and liabilities. On one hand, Section 5 provides for automatic release of the tenant from the covenants in case of assignment of the tenancy. On the other hand, the Act 1995 allows the landlord to impose conditions upon an assignment, such as requiring the tenant guaranteeing the obligation of and performance of covenants by the immediate assignee (Scarrett, 2010). This is provided under Section 16 where a tenant whereby even after being release from the covenants after assigning, the tenants can be bound by an authorised guarantee agreement that the assignee will perform the covenants. This agreement is a necessity before applying for a licence to assign (Duddington, 2018). Section 16(2) and (3) provide that the agreement cannot be valid without the consent of the landlord that requires the tenant guarantee performance of the landlord the performance of the covenants. Section 16(5) further imposes liability on the tenant to be the sole or principal debtor as regards the obligation owed by the assignees and the guarantee of the assignee’s performance. The need of the authorised guarantee agreement is subject to the condition that it cannot be imposed if the lease or the court did not provide for and the tenant can show it to be unreasonable (Wallis Fashion Group Ltd v CGU Life Assurance Ltd [2000] 3 WLUK 772 , 2000).

Section 11 provides that Section 5 release of tenant on assignment will not occur if there is a breach of the covenant of a tenancy or assignment by operation of law (the “excluded assignments”). In consideration of the conditions imposed on tenants related to his release from the covenant, will it fair to consider that the Act 1995 does not provide for conditions imposing on the landlord similar to those related with the release of the tenants upon assignments? The Act 1995 enables the landlord to be released from covenants (Scarrett, 2010). Section 6 allows release of the landlord from the original covenant after lawful assignment of the reversion of the premises. This is subject to the procedure provided for under Section 8 application. Section 8(1) requires the landlord to apply to the tenant notifying the tenant of the intended assignment and a request for release. As per Section 8(2), the release occurs if the tenant does not object or makes a declaration that the release is reasonable. This provision means that the landlord is also bound to equivalent conditions as imposed on the tenants. This condition of Section 8 application is applicable to next assignment of the reversion or assignment of part reversion. If they do not take any action to be released, they will still be held accountable as original landlords (Reeves & Downing v Sandhu (2015)Ch D 13/01/2015, 2015).

This opinion may not be applicable in regard to Section 17, which protects the former tenants where it requires the landlord to serve a notice to the tenant for recovery of fixed charges within six months the charges became due (Richards, 2009). Beyond this period, the right is lost (Richards, 2009). The provision is to prohibit landlord from accumulating arrears over a period of time when the tenant is not aware that a fixed charge is due (Richards, 2009; Scottish & Newcastle Plc v Raguz | [2008] UKHL 65 |, 2008). The notice requirement is to give warning to the tenant to have ample time to remedy the issue. In other words, the tenant will be free from claims in the absence of a notice (Scottish and Newcastle Plc v Raguz: ChD 11 Apr 2006., 2006). In this light, the question is in what way is the tenant’s right not promoted by the Act 1995. The landlord is imposed the duty of notifying when the breach in the form of non-payment of rent is committed by the tenant. Further, the landlord has to give 6 months to the tenant, which the Act 1995 intends to prohibit accumulation. A landlord will not way prefer non-payment of arrears just so to intentionally accumulate arrears. A covenant always provides for payment terms and stipulated time of payment. A landlord will prefer to be paid on time and not to take up the responsibility of meeting the notice requirements and wait for 6 months to take action. Further protection to the tenant is found in Section 19 that allows a tenant to demand a grant of an overriding lease that equals to the remainder of the term plus three days. This enables the tenant in case of a breach to remedy the breach by forfeiting the overriding lease (demand under Section 17 or within the 12 months of payment) as per Section 19(2). Even here, failure of the grant of the overriding lease can subject the landlord to action for damages (Section 29(3)).

Conclusion

To conclude, the Act 1995 provides a balance approach to releasing the tenants and the landlords upon assignment of the lease. Reading the duties and liabilities in regard to both the tenant and landlord covenants, the Act 1995 does not seem to promote a tenant’s interests at the expense of the landlord’s common law rights. It seems to have brought a balance where the right to release upon assignment is subject to the conditions or requirements that the parties must fulfil. However, the provision regarding recovery of accrued arrears from the tenant is detrimental to the landlord as the whole point of leasing out their property is commercial gains in terms of rents. If this right is prohibited or prolonger, justice cannot be said to be served. In this light, this essay partially affirms that the Act 1995 promotes tenant’s interests at the expense of the landlord’s common law rights.

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Bibliography

Scarrett, D., 2010. Property Asset Management. s.l.:Taylor & Francis.

Duddington, J., 2018. Law Express: Land Law. s.l.:Pearson Education Limited.

Edlington Properties Ltd v JH Fenner & Co Ltd [2006] EWCA Civ 403 (2006).

Wallis Fashion Group Ltd v CGU Life Assurance Ltd [2000] 3 WLUK 772 (2000).

Reeves & Downing v Sandhu (2015)Ch D 13/01/2015 (2015).

Richards, R. A. a. M., 2009. A Practical Approach to Commercial Conveyancing and Property B. s.l.:OUP Oxford.

Scottish & Newcastle Plc v Raguz | [2008] UKHL 65 | (2008).

Scottish and Newcastle Plc v Raguz: ChD 11 Apr 2006. (2006).