Louise has recently bought the field adjoining her house from a neighbouring landowner, James. She wants to use it to graze her horse and intends to build a stable on part of it. She is worried about any easements or adverse rights of possession which might exist taking an account of the following facts:
- James continues to drive his tractor across Louise’s field in order to access his own land (as he did before he sold the field to Louise).
- Saul has been parking his car on Louise’s field for over 20 years.
- A) Explain the nature of easements and how they may be created.
- B) Discuss the legal position of the parties and set out the facts that would need to be established for:
- i) James to have an easement over Louise’s land;
- ii) Saul to have an easement over Louise’s land
An easement – it’s a right which entitles a person the right to use a land of which he isn’t owner, in a particular way or restricts the owner of a land to use his land for a particular purpose. For Example, easements can be a right of light or the rights of way. Easements are formed with the sale or purchase of land.
An easement prevents or limits some types of uses and stops the alterations on a land in perpetuity even when the land is owned privately by a person. An easement is thus a legally binding agreement where the rights can be sold by the land owner or can be voluntarily donated.
There are four essentials to form or constitute to an easement –
(1) There has to be a servant tenement and a dominant tenement;
(2) The dominant tenement must be accommodated by the easement;
(3) The owner of serving and dominant tenements should be different persons; and
(4) The easement must form the subject matter of the grant.
Formation and the Creation of the easements –
One party grants easements to another party or can be reserved by a person for himself.
Example – a landowner could entitle a neighbour to use a portion of his land as a pathway to reach his property, or can also give drainage rights, etc.
Easements can be created by –
1) If the reservation or grant is by the deed then it is known as an Express easement. Sometimes the landowner may sell only a portion of his property, keeping the rest with himself. This would give him a written documented easement or right over the property at least to some extent. When there is no need of registration and the land is still unregistered then there comes automatically an express easement. The express easement is needed to be registered if registration of either or both servient and the dominant pieces is done.
2) Sometimes when the landowner sells a portion of his land and keeps a part with him, then even the implied grant also arises. These easements exist legally even if they are not communicated with each other. For example, if the land of the purchaser is totally landlocked by the land retained by the landowner or the seller then there comes an implied easement or easement by necessity to the new purchaser to use the retained land as a path to his land provided that there is no other way.
Pwllbach Colliery Co Ltd v Woodman  AC 634 stated that the easements will take effect according to the manner as intended while selling and retaining of the land.
In Donovan & Anor v Rana & Anor  EWCA Civ 99, the Court of Appeal held that a transferee was entitled to an easement implied by common intention over the transferor’s retained land to connect to mains services in the public highway in spite of the transfer containing wording purporting to exclude the grant of additional easements.
3) For an implied easement, this has to be the most important characteristic feature that it has to be the outcome of necessity. The seller of the property will still be entitled to an easement in certain circumstances if it is an easement of necessity.
4) The Prescription Act, 1832, entitles a person certain rights over a property even if he is not the owner. The right relates to a certain practice that a person has been doing on the property for several years and in a continuous and open manner. Usually the period is minimised to at least 20 years.
5) Due to reason of necessity – where it becomes a necessity, such as when the rights cannot be separated from the persons in whose name the property is not, then the easements are created as an outcome of necessity.
The implication arises from a presumed intention of the parties. It might operate by way of grant if the land disposed of is landlocked, or by way of reservation, if the retained land is landlocked (Clark v Cogge (1607) Cro Jac 170 and Packer v Wellstead (1658) 2 Sid 39, 111).
6) Will – Easements are sometimes created by the way of will. In such a case the testator of the will specifies and forwards the servient and the dominant land not to one person but different persons. The easement is affected only in equity till a personal representative produces a written assent.
i) James to have an easement over Louise’s land;
By reason of necessity
An easement of necessity, usually a right of way, may arise where there is a disposal of part, and there are no other legally enforceable means of access to the land sold or retained.
The presumed intention which is made by the parties helps to define the implication. There shall be a right through grant if the land that is sold is landlocked and through the right of reservation if the land that is retained is landlocked as stated in (Clark v Cogge (1607) Cro Jac 170 and Packer v Wellstead (1658) 2 Sid 39, 111).
Where there isn’t any existing path or road, there was a right of way can arise as a right of necessity. Whereas, section 62 of the LPA 1925 or a rule in Wheeldon v Burrows would govern the quasi-easements that exist over those roads and paths.
But if there is no necessity and there is a separate roadway or path for James to use then it is not an easement or right of him.
A conveyance of land is deemed to include all liberties, privileges, easements, rights and advantages, which that land has the benefit of at the time of the conveyance.
This has the effect of converting mere rights and privileges into new easements (so long as such rights are capable of being easements).
These rights and privileges must have been enjoyed by someone over the land of the grantor. So the land must have been in common ownership but in separate occupation.
- Wright v Macadam (1903)
- A tenant was given permission by his landlord to use a coal shed belonging to the landlord.
- On the renewal of the lease, the right to use the coal shed passed as an easement.
- Earlier it was believed that car parking was not an easement as the landowner would be excluded from the whole possession, and it will then be inconsistent with the ownership. – Batchelor v Marlow (2003).
- But, the House of Lords in Moncrieff v Jameson stated that in Scotland there can exist such an easement, and now in – Kettel v Bloomfold (2012) it has been stated and relied upon, that car parking is capable of being an easement.
Thus, the right to park a car in a defined area nearby can be an easement for the land owner.
But Saul has no rights over Louise’s property; therefore, he is not entitled to any rights or easements to park his car on other’s property.
Michael wants to cut down on travelling time and work more from home. He proposes to convert his double garage into an office with a new door and windows replacing the original garage door. He needs to cut down some large trees surrounding it to give it more light. He wants to replace the garage with a new garage in the back garden to his neighbour’s fence. He also wants to install solar panels on the roof of his house.
- A) Explain the legal matters which will determine whether planning or other consents will be necessary to convert the garage and use it as an office, cut down the trees and install the solar panels. (Ignore Building Regulations).
- B) How would your answer differ if?
- i) Michael’s house and garage are in a conversation area
- ii) The house is a listed building
1) Fence issue –
Right of Support
For mutual support, buildings in many cities are joined together by party walls. To demolish one such building and obvious damage to a part of the adjoining building has to be done. Here comes the right that the remaining building possesses from the demolished building. This right is the right of support. So it becomes the duty of the demolished building owner to provide a continuous support to the remaining building.
This right of support also applies to the ground, where excavation in a land can cause harm to the foundation or the construction of the neighbouring property. Therefore, the right of support comes along even in cases to retain the walls that coincide along the boundary of another building. That is the fences.
Only if the neighbour gives permission to do so then only Michael can use the fence.
Making alterations to the fences of a neighbouring land will cause or put much heavier burden on those fences than for which they were designed for. Any activities like, hanging plantations on those fences, leaning things against those fences, using a neighbour’s fences as retaining walls, etc. this would lead to conflicts, damages, costs, penalties for repairs.
This suggests that anything that is done in case of neighbours fence, his consent or permission has to be taken first.
2) Trees –
Tree can be cut without anyone’s permission if it is not located within a conservation area or there is no tree preservation order.
3) Converting garage into office –
There are three essentials – if such act is done without the permission then the cost is to be paid to get it back to the original condition.
- Restrictive clausesin the lease – sometimes the lessor puts some clauses that restrict the lessee to convert certain portions of the property. Here the person may have the option to convert leaving the front portion of the garage for that purpose only n using the rest for what he intends.
- Planning permission– the planning permission is only required if one wants to change the size of the garage while converting it into some other purposed block.
- Building Regulations– government building regulations are to be complied with when a person plans to convert any of the parts of the house into a room used for living purposes.
Some reasons, where permission would not be given:
- If the house is a listed building.
- If the constructing or conversion affects the drainage.
- Parking restrictions – in some cities like, London, there has to be a separate place for car parking, which cannot be disturbed.
4) Solar panels –
Yes, Building Regulations Approval is needed if, on a roof, a person installs solar panels provided that the work is carried out by an installer registered with a ‘Competent Person’ self certification scheme. Maximum, the load the existing roofs can hold has to be assessed, and some strengthening would have to be done.
Solar panels –
Planning permission is mandatory if the fittings of the solar panels are made on the side walls and can be seen from the roads if that property is constructed in a conservation area.
The solar panels attached to the pitched roofs, do not require any planning permissions, but some essentials are there –
- Due to slanting roofs, and chimneys even the highest part of the solar panels would not exceed the highest part of the roof any part of the panel exceeds the highest part of the roof.
- None of the parts of the solar panel shall exceed 20 cm from the roof as visible.
- The boundaries of the existing roof shall not be exceeded by the panels.
- If the house is within the World Heritage Site or conservation area the roof slope on which the panels are fitted must not face onto and be visible from the road.
In the conservation area, cutting down trees have to be approved, and there has to be a mandatory permission required.
If anyone wants to cut or even trim the trees that lie within these areas or are protected by any order, then the consent has to be taken from the District Council. But if the trees are dead or dangerous than no need of any permission.
Planning permission is not required for Solar panels in houses. But there are some guidelines and restrictions. Such as, the projection of the solar panels should not be more than 20cm attached to the wall or the roof.
- Listed Buildings – if a property comes under the count of listed building then the listed building consent becomes mandatory.
No listed building consent is required but still planning permission may still be required and even the building regulation consent may be required in certain works, like –
- Modifications, changes of the paths, patios etc
- Decking (if it is not in joining to any structure which is a listed structure)
- The building of any free standing buildings like, pergolas, sheds, greenhouses, gazebos, garages etc
- Construction of any new type of enclosures such as gates, walls, railings, hedges, boundaries, fences. Proviso – the new constructions shall not be attached to any listed structure.