Chapter 10 Map and thinking points: Easements

Easements and Profits
Land Law: Easements and Profits map/plan of a parcel of land

Serena owns Amber Lodge House, purchasing it from Thomas in 2017. Serena enjoys an express easement (right of way) over the private road which crosses in front of Red Cottage and joins to the main road. In 2018, Serena purchased another plot of land adjoining to Amber Lodge on which she built a garage with a one-bedroom flat above.

Serena works as a social media consultant and runs her business from a specially-constructed study at Amber Lodge. She therefore conducts most of her work online or meets clients at their own offices. She does, however, have a small number of meetings at Amber Lodge – perhaps twice a month.

Una is the owner of Red Cottage and she is unhappy at the increased use of the right of way by Serena and, in particular its use in order to access to the new garage. Una recently erected a gate across the right of way near the main road and her wife, Vera, has placed several large, heavy flower pots at the front of the Cottage on the road.

Serena has learned that Thomas sometimes used a track over land Thomas has retained to reach Amber Lodge and that this is a quieter, safer way of joining the busy main road via a roundabout. The conveyance of Amber Lodge to Serena expressly excluded operation of s62 of the Law of Property Act 1925.

Serena wants your advice:

  1. Can Serena use the right of way over Red Cottage to access her new garage?
  2. Can Serena’s clients use the right of way over Red Cottage?
  3. Can Serena raise any objection to the gate and flower pots?
  4. Can Serena claim an impliedly granted right of way of Thomas’ retained land?

  1. Can Serena use the right of way over Red Cottage to access her new garage?

    The issue to be explored here is the extent of grant of the right of way i.e. how far does that right of way extend? Does it extend just reach Amber Lodge only or can it now extend to the newly-acquired land?

    You would need to explore the principle laid down in Harris v Flower (1904) and the exceptions to this rule as noted in cases such as Macepark v Sargeant (2003). Can use of the right to access the garage be regarded as ‘merely ancillary’ to the use of the dominant land? Our facts appear similar to those in Gore v Naheed (2017) which might usefully be discussed. Seem likely access to the garage will be seen as within the terms of the original grant. Might it depend on who lives above the garage and if this is to generate a profit for Serena (i.e. a business venture?). The words of the original grant of the easement will need to be read very closely.

  2. Can Serena’s clients use the right of way over Red Cottage?

    The issue here is potential excessive user/change in use of the dominant land. You would want to discuss the key case of McAdams Homes v Robinson (2004) and whether, on our facts, use of the right of way by Serena’s occasional clients has led to a radical change in the character of the land and has resulted in a substantial increase in the burden on the servient land. If this does amount to excessive user/change in use, what remedies might be available? Serena will not be able to use the track for her clients and an injunction/damages may be sought against her.

    Alternatively, might occasional use by clients merely amount to an intensification of the use of the easement which does nevertheless fall within the terms of the expressly granted easement? If so, Serena can continue to allow her clients to use the right of way provided it does not become excessive.

  3. Can Serena raise any objection to the gate and flower pots?

    The issue here is interference with Serena’s exercise of the easement. Key questions here include: when will an interference be actionable? You will want to explore the relevant case law including B&Q plc v Liverpool and Lancashire Properties Ltd (2001) where the court held that an interference is actionable if it is substantial; it will not be substantial if it does not prevent reasonable use. So, on our facts: what is factually relevant? What more information is needed? The precise location, size, nature of the gate; is it left open, always closed? Electric entry? How large are the flower pots? How much of the right of way do they block (if any)? Can vehicles move around the pots with ease? Cases such as Saint v Jenner (1973) and Page v Convoy Investments Ltd (2015) could usefully be explored.

    If the interference is actionable what remedy would Serena seek? Damages or an injunction to remove the gate and or the pots are most likely.

  4. Can Serena claim an impliedly granted right of way of Thomas’ retained land?

    The issue here is implied grant of an easement for Serena to use the track over the land retained by Thomas. You should consider the different bases on which an easement may be implied and whether they are appropriate on our facts:

    • An easement of necessity seems difficult to argue given Serena has another access route: the express right of way/access to her property in front of Red Cottage. Consider the meaning of ‘necessity’ in Manjang v Drammeh (1990) and Walby v Walby (2012).
    • S62 of the LPA 1925 has been expressly excluded and so cannot apply.
    • An easement of common intention? Seems problematic as the case law requires evidence of a common intention between the parties that the land be put to a definite and particular use and that the easement is necessary to give effect to that stated purpose. No evidence of any common intention on our facts and, moreover, the alternative access route in front of Red Cottage is unlikely to render an easement by common intention ‘necessary’ here. Consider the cases of Pwllbach Colliery Co. Ltd v Woodman (1915); Wong v Beaumont Property Trust Ltd (1965); Stafford v Lee (1992) 
    • An easement under the rule in Wheeldon v Burrows? This appears to be Serena’s best argument. Consider the requirements for the rule to operate per Thesiger LJ:
      • The Transferor of land was using a quasi-easement at the time of transfer;
      • The Quasi-easement was ‘continuous and apparent’
      • In addition/alternatively: the quasi-easement was reasonably necessary for enjoyment of the land.

    The first 2 requirements seem unproblematic and satisfied on our facts. The third requirement is more problematic as (1) there was only occasional use by Thomas of the track; (2) another route is available (Wheeler JJ v Saunders (1995)). Yet, in Borman v Griffith (1930) as secondary route was found to be reasonably necessary as it offered significant advantage over the first available route for heavy vehicles. Might Serena argue that, on safety grounds, the implied easement is necessary?

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