Question 1:
Alex is the registered freeholder of land known as ‘Highbury’ – a large house with
extensive gardens and outbuildings. Alex renovates one of the outbuildings to
provide residential accommodation. Alex then leases that property (the ‘cottage’) to
Bobbie for three years. As part of the leasehold agreement, Bobbie is permitted to
use Alex’s shed to store fuel for heating the cottage. As Bobbie’s lease is coming to
an end, Bobbie offers to buy the freehold to the cottage from Alex for £200,000. Alex
agrees, and the transfer of the cottage is completed by registration with Bobbie as
the new freehold owner.
Charlie is the registered freeholder of ‘Okement’ – a house that shares a boundary
with Highbury. Charlie and Alex enter into a formal agreement whereby Charlie is
allowed to park one car on Alex’s driveway (at Highbury), the driveway being large
enough to accommodate several cars. The agreement is drawn up in a written
contract, signed by both Alex and Charlie, and Charlie pays Alex a one-off fee of
£2,000 in return for the parking right.
Alex later decides to sell what remains of Highbury to Dale, for £800,000. Dale is
duly registered as proprietor. Dale is surprised to see Bobbie use the shed to store
fuel, and is further surprised to see Charlie park a car on the driveway. Dale had
thought that both the shed and the driveway were part of his purchase of Highbury
and therefore within his exclusive control.
Advise Dale.
Answer:
Storage
Content Requirements
Bobbie has been permitted to store fuel in Alex’s shed as part of the leasehold
agreement which amounts to an express grant. Storage has been recognised in
case law as being an easement (Wright). To establish whether this right amounts to
an easement, the four requirements in Re Ellenborough must be satisfied. There are
dominant and servient tenements, the cottage is dominant, and Highbury (including
the shed) is servient. The dominant and servient tenements are in distinct ownership:
Alex was the freehold owner of Highbury and Bobbie is the freehold owner of the
, cottage. The storage right accommodates the dominant tenement by benefitting
Bobbie’s cottage by ensuring adequate heating, which enhances the property’s value
and utility (Hill) and does not just provide personal gain (P&A). There is also
sufficient proximity between the tenements because the cottage is located on the
land of Highbury (Bailey). The right is explicitly defined in the lease and involves
capable parties; thus, it may be capable of forming the subject matter of a grant.
However, if the right ousts Alex’s use of the land, this will mean the right is not
capable of being the matter of a grant. This is not stated on the facts, and we can
presume Alex is still able to enjoy the use of the shed as Bobbie likely only visits to
collect and store the fuel (Wright). The easement requirements are met.
Formalities
For the right to exist as an easement it needs to have been validly created by a
recognised method. To be legal, expressly granted easements must be acquired by
deed (s.52 LPA 1925; s.1 LP(MP)A 1989), registered per s.72 LRA 2002, and be
created for the duration of the freehold or leasehold. The right is an express grant;
however, it does not say it was granted in the lease by deed, which would qualify as
a legal easement. The facts also do not state whether the easement was registered
when the freehold was transferred.
This express grant of an easement may nevertheless take effect in equity in the
absence of the correct legal formalities. An implied easement can be acquired
through necessity, common intention, s.62 LPA 1925 or under the rule in Wheeldon
v Burrows. There is no necessity as it is possible to use the land without the
easement (Walby). The threshold is high and only true necessity will qualify (Sweet).
Moreover, Wheeldon cannot apply as this requires unity of occupation.
Alex is the registered freeholder of land known as ‘Highbury’ – a large house with
extensive gardens and outbuildings. Alex renovates one of the outbuildings to
provide residential accommodation. Alex then leases that property (the ‘cottage’) to
Bobbie for three years. As part of the leasehold agreement, Bobbie is permitted to
use Alex’s shed to store fuel for heating the cottage. As Bobbie’s lease is coming to
an end, Bobbie offers to buy the freehold to the cottage from Alex for £200,000. Alex
agrees, and the transfer of the cottage is completed by registration with Bobbie as
the new freehold owner.
Charlie is the registered freeholder of ‘Okement’ – a house that shares a boundary
with Highbury. Charlie and Alex enter into a formal agreement whereby Charlie is
allowed to park one car on Alex’s driveway (at Highbury), the driveway being large
enough to accommodate several cars. The agreement is drawn up in a written
contract, signed by both Alex and Charlie, and Charlie pays Alex a one-off fee of
£2,000 in return for the parking right.
Alex later decides to sell what remains of Highbury to Dale, for £800,000. Dale is
duly registered as proprietor. Dale is surprised to see Bobbie use the shed to store
fuel, and is further surprised to see Charlie park a car on the driveway. Dale had
thought that both the shed and the driveway were part of his purchase of Highbury
and therefore within his exclusive control.
Advise Dale.
Answer:
Storage
Content Requirements
Bobbie has been permitted to store fuel in Alex’s shed as part of the leasehold
agreement which amounts to an express grant. Storage has been recognised in
case law as being an easement (Wright). To establish whether this right amounts to
an easement, the four requirements in Re Ellenborough must be satisfied. There are
dominant and servient tenements, the cottage is dominant, and Highbury (including
the shed) is servient. The dominant and servient tenements are in distinct ownership:
Alex was the freehold owner of Highbury and Bobbie is the freehold owner of the
, cottage. The storage right accommodates the dominant tenement by benefitting
Bobbie’s cottage by ensuring adequate heating, which enhances the property’s value
and utility (Hill) and does not just provide personal gain (P&A). There is also
sufficient proximity between the tenements because the cottage is located on the
land of Highbury (Bailey). The right is explicitly defined in the lease and involves
capable parties; thus, it may be capable of forming the subject matter of a grant.
However, if the right ousts Alex’s use of the land, this will mean the right is not
capable of being the matter of a grant. This is not stated on the facts, and we can
presume Alex is still able to enjoy the use of the shed as Bobbie likely only visits to
collect and store the fuel (Wright). The easement requirements are met.
Formalities
For the right to exist as an easement it needs to have been validly created by a
recognised method. To be legal, expressly granted easements must be acquired by
deed (s.52 LPA 1925; s.1 LP(MP)A 1989), registered per s.72 LRA 2002, and be
created for the duration of the freehold or leasehold. The right is an express grant;
however, it does not say it was granted in the lease by deed, which would qualify as
a legal easement. The facts also do not state whether the easement was registered
when the freehold was transferred.
This express grant of an easement may nevertheless take effect in equity in the
absence of the correct legal formalities. An implied easement can be acquired
through necessity, common intention, s.62 LPA 1925 or under the rule in Wheeldon
v Burrows. There is no necessity as it is possible to use the land without the
easement (Walby). The threshold is high and only true necessity will qualify (Sweet).
Moreover, Wheeldon cannot apply as this requires unity of occupation.
