Regular updates on relevant case law and legislation - October 2009

CHAPTER 17 EASEMENTS

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

In Greatorex v Newman [2008] EWCA Civ 1318; [2009] 1 P&CR DG13, the grant restricted a right of access to use ‘as now used’. ‘Now’ was 1921 and access was by tradesmen, not customers. The right did not extend to the customers of a pub in the ‘now’ of 2008.

In Risegold Ltd v Escala Ltd [2008] EWCA Civ 1180; [2009] 2 P&CR 1 the words restricting the easement of access to ‘renewal and rebuilding’ on the land included redevelopment of the land. Taking everything into account, the probable intention of the parties when the easement was granted and the need for flexibility meant that the words could be given a wider meaning than when used in planning law.

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

In Davies v Bramwell [2007] EWCA Civ 821; [2008] 1 P&CR DG2, 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.

Box B7 Prescription (legal easement) page 476

The claim to an easement of a right to light under the Prescription Act 1832 is defeated under section 3 by written permission at the beginning or during the 20-year period. In RHJ Ltd v FT Patten (Holdings) Ltd [2008] EWCA Civ 151; [2008] Ch 341, the lease reserved to the landlord a ‘full and free right’ to build on the land retained ‘as they may think fit’. The tenant claimed that it had acquired a right to light through prescription because it had enjoyed continuous light for 20 years. Part of section 3 of the Prescription Act 1832 relating to written permission became relevant. 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. The wording in the lease was important in this decision. In contrast, in Salvage Wharf Ltd v G&S Brough Ltd [2009] EWCA Civ 21; [2009] 2 P&CR 13; the wording in the agreement did not trigger section 3 and the claimant did not lose his rights to light.

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

In Carter v Cole [2009] EWCA Civ 410; [2009] 33 EG 66, when the right of access for lorries had been granted, both parties knew that certain requirements concerning visibility for the access were necessary. When the servient owner interfered with the visibility by fencing and planting shrubs, this was a derogation from grant and he had to remove them and pay damages.

In Heslop v Bishton [2009] EWHC 607 (Ch); [2009] 28 EG 86, it was held that the servient owner, Mr Heslop, couldn’t unilaterally change the route of Mr Bishton’s right of way because it would be a derogation from grant. The provision of an alternative route could affect the remedy for obstruction though. Although an injunction to remove the obstruction wasn’t necessarily appropriate because of this alternative route, the court could still award damages.

Easements – the interpretation of section 62 of the Law of Property Act 1925 (page 503)

There is an interesting article which looks at whether a contractual licence can become an easement under section 62 of the Law of Property Act 1925 on Rowena Meager’s Property Law Blog at

http://rowenameager.com/2009/06/05/easements-conundrum/

This is a useful site with some interesting and thought provoking comments.

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