Regular updates on relevant case law and legislation - October 2008

CHAPTER 17 EASEMENTS

Box A4iv The right must not totally exclude the servient owner (page 461)

In Brooks v Young [2008] EWCA Civ 816; [2008] 21 EG 139 (CS), a grant allowing the dominant owners to exercise ‘a right of way at all times… for all proper purposes connected with the reasonable enjoyment of the property’ allowed the dominant owner unlimited access providing the purpose was not improper i.e. illegal or immoral. The words of the grant were to be given their natural meaning and the court would not take into account the opinion of the parties as to what they thought the words meant. Any claimed restriction on the use of the right of way could, and should, have been clearly stated in the grant.

Box B4 Implied grant of mutual intention (legal easement) (page 468)

An implied easement of common intention was found in Davies v Bramwell [2007] EWCA Civ 821; [2008] 1 P&CR DG2 applying the principles set out by Lord Parker in Pwllbach Colliery Co Ltd v Woodman (1915) AC 634. The common intention of the parties was that servicing and repair of cars would take place in the garage on the land that had been conveyed. This included using a ramp in the garage to do so. To use the ramp safely, vehicles would have to be driven across the land which had been retained by the vendor, called the blue land. The common intention of the parties had been that the land would be used as a garage, which included the use of a ramp. To give effect to that common intention, a right of way over the blue land had been granted by implication.

Prescription (legal easement) (page 476)

In RHJ Ltd v FT Patten (Holdings) Ltd [2008] EWCA Civ 151; [2008] 2 W.L.R. 1096, the lease reserved to the landlord a ‘full and free right’ to build on the land retained ‘as they may think fit’. The tenant argued that it had acquired a right to light through prescription because it had enjoyed continuous light for 20 years. Section 3 of the Prescription Act 1832 states that the right to light will not arise if it ‘was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing’. This means that rights to light cannot be claimed where consent or agreement has been expressly made. The tenant argued that the agreement made in the lease did not refer to ‘light’ expressly and so it could still claim a right to light. The Court of Appeal held that the clause in the lease constituted written agreement and said that the agreement did not have to refer expressly to ‘light’ for it to exclude a claim to a right to light by prescription. Note that the wording in the lease was important in this decision. The result will apply not only in the landlord/tenant situation but also where a developer sells off part only of his land and retains the rest for future development. So, developers selling off plots of land may wish to take care with the wording in any conveyance to ensure that it comes within section 3, thereby ensuring that a purchaser cannot claim a right to light if the developer starts to build on the adjoining land. Potential purchasers need to make sure that their enjoyment of light on the land will not be lost if the adjoining property is developed. They will need to check this out before they even think about exchanging contracts.

Remedies for unlawful interference with an easement and how easements come to an end (page 491)

In Wall v Collins [2007] EWCA Civ 444; [2007] 3 WLR 459, it was held that the merger of a lease (which had the benefit of an easement of a right of way attached to it) with the freehold did not extinguish the easement which had been attached to the lease. An easement had to be attached to and benefit a dominant tenement, but it did not have to be attached to any particular interest provided the person claiming the easement held an interest in the dominant land that was as least as long in time as the lease. This meant the right of way could be used by the freeholder for as long as the lease had been granted for originally, even though the lease was now merged in the freehold. The right could also have passed under section 62 of the Law of Property Act 1925 (page 471).

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