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Published: Fri, 02 Feb 2018
Emma owned a country house, together with a huntsman’s cottage at the rear. She leased the cottage to Gabby, a professional painter of watercolours. That lease included an express grant of a right of way permitting all visitors to the cottage to gain access via a walled rose garden at the side of the country house. The lease also allowed Gabby to pick a few roses from the garden every now and then, for use in still life paintings.
While this first lease was still in force, Emma gave permission for visitors to the cottage to pass through the main hallway of the country house whenever her two deer hounds were loose in the gardens. The first lease expired, but Gabby was granted a new lease, containing the same express clause permitting access via the rose garden. There was no mention of using the main hallway of the country house. While Gabby’s lease was still running, Emma sold the fee simple title to the cottage to Perry. Emma is concerned that she might have burdened her country house and gardens with permanent rights. Advise her.
Students will be assessed on their ability to: Identify the legal issues raised by the particular facts of the question. Apply relevant legal principles and authorities to the issues. Impose a logical structure on their answer. Present their answer in a clear and concise manner. Deal conclusively with each issue as it is raised.
In the above the legal issues that need discussion in order to advise Emma include incumbrances such as easements and leases and rights of entry. It will also be necessary to consider whether allowing Gabby to cut the roses is an easement or a profit a prendre. There will also need to be a discussion on the passing of the burden and the benefit of a covenant. Leases need to be discussed to determine whether the creation of a new lease would mean that the covenants promised on the first lease will cease to exist once the new lease is created.
An easement comes into existence when a landowner gives another person the right to use their land without passing the possession of the land to the other person. This can occur where a landowner allows someone who has a neighbouring property to use the land to get access to their own property. An easement can be express or implied. Implied easements can occur if a landowner sells some of his land and the only access to the land is across the land of the landowner. This would create an easement of necessity as the land cannot be used for its designated purpose unless access is allowed. Express easements occur where the landowner either expressly informs the person that they are granting a right of way or can be done formally through a deed of grant.
Easements by prescription occur where there has been a continuous use of the land as a right of way for a considerable period of time. The usually period required for easement by prescription to apply is 20 years and has the effect of assuming that long use is lawful use.
An easement requires there to be a dominant and a servient tenement. For an easement to have been created the dominant tenement must derive some benefit from the easement. Such benefits must go with the land and cannot be for a named individual. The servient and dominant tenement cannot be the same. Easements can exist in equity or in law. Legal easements must fulfil the requirements of the Law of Property Act 1925 s1(2)(a). Under this Act the easement must be created by deed, prescription or statute and must be for a term of years absolute. Where the easement has been enjoyed for over 40 years an absolute right to the easement is granted by statute.
Equitable easements are not usually created by a deed of grant and are generally formed through informal agreements between the parties. If an easement is not fixed in length or is not perpetual it will be regarded as an equitable easement. Legal easements are automatically transferred to subsequent owners of the property. It is common practice for express easements to be noted on the register so that a prospective purchaser would know of its existence. Equitable interests that are registered in the title would not be an overriding interest but just a minor interest. If the easement is not registered on the title then the new buyer takes the property free of the easements.
An easement can be distinguished from a profit a prendre in that a profit a prendre can attach to land or to a person where an easement cannot. With a profit a prendre the person granted the right is entitled to go onto the land of the other and to diminish the land by taking something away from it. It is likely in the situation above that by allowing Gabby to remove the roses this would amount to a profit a prendre. However, for a profit a prendre to be legal it must be evidenced in writing. As the right to pick the roses is included in the lease it could be argued that this is evidence in writing which would therefore create a profit a prendre.
In the above scenario it states that the easement to use the gardens as a right of way was included in the first lease, under the Law of Property Act 1925 the courts are likely to hold that a legal easement has been registered on the property and therefore the easement will be regarded as permanently burdened to any subsequent owner. It is also stated that the subsequent lease allowed the right of way to continue. In this particular scenario the land would be burdened by the easement of the right of way. As the easement was contained within the lease agreement the easement should have been entered onto the register. Anyone wishing to purchase the land can check the register to see whether any such incumbrances have been registered against the land. An express easement us regarded as an overriding interest and will therefore bind a subsequent owner.
When dealing with the issue regarding the right to use the hallway when the dogs are loose in the grounds, it is unlikely that the court would order that this right be continued. The new lease has removed the permission that was formally granted in the original lease. Although in general terms it is impossible to remove an easement by not including the easement in a subsequent lease it could be argued in this instance that the right granted was not a general right of way but was merely a licence to use the hallway as a means of access subject to certain conditions.
In the case of the Trustees of the British Museum v Finnis (1833) 5 Car & P 460, 465 the court where asked to determine whether an easement had been duly created by allowing the public to continually pass over the area. Patteson J summed up how a landowner could prevent the usage from being regarded as an easement stating that
“If a man opens his land, so that the public pass over it continually, the public, after a user of very few years, would be entitled to pass over it, and use it as a way; and if the party does not mean to dedicate it as a way, but only to give a licence, he should do some act to show that he gives a licence only. The common course is, to shut it up one day in every year, which I believe is the case at Lincoln‘s Inn.”
Similarly in Barraclough v Johnson (1838) 8 Ad & E 99, 105, Littledale J commented that
“A man may say that he does not mean to dedicate a way to the public, and yet, if he had allowed them to pass every day for a length of time, his declaration alone would not be regarded, but it would be for a jury to say whether he had intended to dedicate it or not. The facts may warrant them in believing that the way was dedicated, though he has said that he did not so intend: and, if his intention be insisted upon, it may be answered that he should have shewn it by putting up a gate, or by some other act.”
In the scenario above the use of the hallway is not continual and is only to be used when the dogs were loose. As the usage is intermittent it is likely that the court would determine that it was not the intention of Gabby to dedicate the use of the hallway as a public right of way.
The advice that can be given to Emma as a result of the above is that the easement to use the grounds as a public right of way will remain attached to the property as it has been recorded within the lease. The burden of this easement will pass to any subsequent owner of the property which in this case would mean that Perry would be subject to the burden upon transfer of the title.
The right to use the hallway has been extinguished by the issuing of the new lease and because it is likely to be viewed by the courts as a licence only it would not be regarded as an easement and can rightly be extinguished through the new lease. This would mean that Perry would not have to allow the public to use the hallway.
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Gray, K, Elements of Land Law. Butterworths, 1993
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Holdsworth, W, History of English Law, 7th Ed, 1956, Mathuen & Co Ltd
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Table of Cases
Ackroyd v Smith (1850) 10 CB 154
Barraclough v Johnson (1838) 8 Ad & E 99, 105
Bryant v Foot (1867) LR 2 QB 161
Leech v Schweder (1874) 9 Ch App 463
Mulliner v Midland Railway (1879) 11 Ch D 611
Re Ellenborough Park  Ch 131
Roe v Siddons (1889) 22 QBD 224
Todrick v Western National Omnibus Co Ltd  Ch 561
Trustees of the British Museum v Finnis (1833) 5 Car & P 460, 465
Union Lighterage Co v London Graving Dock Co  2 Ch 557
White v Taylor (No 2)  1 Ch. 160
Table of Statutes
Land Charges Act 1972
Law of Property Act 1925
Prescription Act 1832
 Re Ellenborough Park  Ch 131
 Mulliner v Midland Railway (1879) 11 Ch D 611
 Union Lighterage Co v London Graving Dock Co  2 Ch 557
 Prescription Act 1832
 Bryant v Foot (1867) LR 2 QB 161
 Ackroyd v Smith (1850) 10 CB 154
 Todrick v Western National Omnibus Co Ltd  Ch 561
 Leech v Schweder (1874) 9 Ch App 463
 Roe v Siddons (1889) 22 QBD 224
 Land Charges Act 1972 s2 (5) (iii)
 Law of Property Act 1925 s62
 White v Taylor (No 2)  1 Ch. 160
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