The Land Law - Case Study Example

Land Law Perhaps the most important starting point is to define what easements are, and how they can be incorporated. Pugh-Smith, J, Sinclair, G &,Upton, W(Land law, 2006,p.51) defines an easement as follows: ”An easement is an interest in land which entitles a landowner, to use, or restrict the use of, his neighbour’s land in a particular way without giving him possession.” It is important to mention that easements can be positive or negative. Positive in the sense that they can grant access for example to a landlocked piece of land, and negative in the sense that the landowner may not enjoy his property due to inconvenience from the passersby. It can be argued that implied easements has caused considerable problems both to litigants and the courts in that, each case is decided on its own merits despite having the rules that governing implied easements. Easements may be implied in three ways; by way of a grant, by statute or under the rule in Wheeldon v Burrows. Easements of necessity will be implied where a property cannot be used at all without the easement. The court of Appeal in Nickerson v Barraclough1 held that a right of necessity can only arise upon the sale of the land. In addition, the court held that it cannot arise where the land only became landlocked upon a subsequent grant but was not locked at the date of the conveyance at issue. The trouble with necessity is its limitation to specific cases where the land has become landlocked following the sale of the surrounding land. In Wong v Beaumont Property Trust Ltd,2 the lease which was intended to be used as a Chinese Restaurant, the Assignee covenanted to eliminate all noxious smells and odours in order to comply with public health Regulations. Unknown to the parties at the date of the assignment, it was necessary for a new ventilation system to be installed if the assignment were to be able to comply with the covenant and the regulation. Such a system would have to lead into the landlord’s premises. The court of Appeal held that, as the assignee could not comply with the terms of the lease, nor with the public health regulations, without the required ventilation duct, an easement of necessity would be implied to give effect to the common intention of the parties. It should be stressed that an Easement of necessity will only be implied if there would be no enjoyment of the land at all without such an easement. This is illustrated in Union Lighterage Co v London Graving Dock Co3 in which tie-rods on the claimant’s land held in place the wooden walls of the appellant’s dock for over 20 years. Stirling J stated:” In my opinion an easement of necessity, such as is referred to, means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of the property….” It is this kind of rules that makes the law on implied easements difficult to follow. There is more common sense applicable than the required procedural rule. Furthermore, s.62(1) of the law of property Act introduces its mandatory rules stating that: “..shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, ledges, ditches, fences, ways, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof….”4 S.62 contains general words which can imply rights into the conveyance where they have not been specifically mentioned. This creates a doubtful effects on easements. What a piece of legislation. It’s not only long and poorly drafted, but un fit for the modern vendor who may not have access to a qualified legal advisor. It can be argued that the words implied by s.62 was simply to shorten deeds. Chappelle, D(2008, pp.417-418), argues that for s.62 to apply, certain requirements must be satisfied. These requirements includes: “(a)diversity of ownership or occupation, deed of conveyance, and, the right must be capable of being an easement.”5 But how easy is it to apply s.62 to any given situation? Very complicated. In Hain v Gillman & Inskip,6the court of Appeal held that notwithstanding that the permission was not in itself an easement or the grant of an easement; that it was never made with the necessary formality to satisfy the law of property Act; that it could not take effect in equity under an enforceable agreement because there was no consideration , and that the permission was at all times precarious in that it could be withdrawn at any time(being a bare licence). It had been converted into a legal easement on the conveyance of the legal estate to the person enjoying the permission. The rule in Wheeldon v Burrows,7 further introduces another technical difficult to implied easements. This rule may enable a purchaser to acquire an easement where s.62 does not apply. But the set back on the rule is that it is restricted to cases where the same person, immediately prior to the conveyance, owned or occupied both pieces of land. The principle here is that a vendor or grantor may not derogate from his grant. He cannot agree to grant land and at the same time deny to the grantee the easement. In Wheeler v JJ Saunders Ltd,8 the case involved a farmhouse, owned by the Wheelers, on land adjacent to a pig farm owned by the defendant company. Both properties had previously been owned by one person. There were at least two means of access to the property, one of which could only be reached by crossing the defendant’s land. There was no express grant of a right of way over their land, and the defendants blocked it off by building a wall. The Wheelers claimed an easement of necessity, but the court of Appeal held that as the blocked entrance to their property was not the only one, there could be no necessity. At first instance, the judge had held that the Wheelers obtained entrance a right of way under the rule in Wheeldon v Burrows, but the court of Appeal held that the blocked entrance was not necessary for the reasonable enjoyment of the land, since the alternative entrance would be ideal. But the question is, why does the rule apply? Bray, J(2004,p. 313) states: “In order to claim implied easement under Wheeler v Burrows, it is necessary for the quasi-easement to be continuous and apparent, necessary for the reasonable enjoyment of the property granted and, in use by the owner at the time of the grant for the benefit of the part granted.”9 It can be argued that the entire implied easements rules is technically complex and needs reform. The Law Commission Consultation paper No. 186 chaired by William Arnold stated on the immediate need of reform: “The law governing the implied acquisition of easements and profits is neither straightforward nor clear. In this section, we shall first discuss the problems that exist in relation to the current law, and then consider how those problems can be dealt with, concluding with an outline of possible approaches to reform.”10 At paragraph 4.37, the Commission further raises concerns on implied easements arising by reason of section 62 of the LPA 1925. “We include in the following discussion easements that arise by reason of section 62 of the law of property Act 1925. Section 62 where not excluded, operates as a word-saving devices. Strictly speaking, therefore, easements granted in this way are expressly granted or reserved. Nevertheless, the provision is commonly considered alongside the various means of implication because of its similar effect.”11 The commission further stated that the implied easements needed reform with the problems associated with them. “We do however, consider that the rules by which easements may be implied are in need of reform. The current rules of implied acquisition are unsatisfactory. Not only would the individual categories of implication benefit from reform aimed at the particular problems associated with them, we believe that the overall structure of the rules requires attention.”12 In response to the Law Commission Consultation Paper No. 186, the Westminster and Holborn law society stated:”8. Implied easements(4.53) we agree that in the case of new dispositions, it should not matter implication is for grant or reservation, provided that the parties are free to negate implication by express provision.”13 Part 7 of the City of Westminster and Holborn law society’s response further declares:”24.(a) The main defects are as identified in part 7. It is correct that there is often great difficulty in ascertaining who may benefit from old restrictive covenants, for example, merely for benefiting of ‘adjoining or neighbouring land of the vendor’ at the date of a conveyance. The old rules are too complicated.” The City Solicitors’ response to the law commission consultation paper No. 186 on the continued operation of section 62 LPA 125, stated:”5.5 We provisionally propose that section 62 of the law of property Act 1925 should no longer operate to transform precarious benefits, enjoyed with the owner’s licence or consent, into legal easements on a conveyance of the claimant estate.”14 On the other hand, the council of Mortgage Lenders in their response to the consultation by the law commission had this view on easements generally: “3. Lenders have real issues with the current requirement that the dominant and servient tenements to be owned by separate persons. This is because lenders often wish to grant a charge over part only of a property should the lender need to take possession the lender will need appropriate rights over the part of the borrower’s land that does not come within the charge. However, because of this rule this is very difficult to achieve.”15 Surprisingly however, the law commission report leading up to the 2002 Act(Land Registration for the 21st century(law com. No.254) did not raise concerns on the implied easements reform but instead recommended that the law on prescription be changed. Bray, J(2004,p. 325) argues that:”….These proposals were not implemented but other recommended reforms in relation to the overriding nature of easements have been put into effect.”16 Bray further indicates at( p.325)that the 1996 law reform committee(cmnd 3100) were of the opinion that the law on easements be reformed. But there is no mention of the implied easements. “It recommended that prescription should be abolished for both easements and profits. It also recommended that there should be one single period for acquiring rights prescriptively, which would be 12 years. This was not implemented.”17 It would thus be submitted that the law on implied easements needs reform for the benefit of the parties involved and the courts. The current legal position is not transparent. Each individual case is looked at on its own merits. The courts tend to abandon the current legal guidelines to reach their decisions. Word Count:1,846 Bibliography Bray, J(2004), Unlocking Land Law, 1st ed, Hodder & Stoughton, London. Chappelle, D(2008),Land Law, 8th ed, Pearson, London. Chappelle, D(2006), Land Law, 6th ed, Pearson, London. Pugh-Smith, J, Sinclair, G,& Upton, W(2006), Land law Statutes LPA 1925 LPA 2002 Limitation Act 1980 Websites www.cml.org.uk/cml/filegrab/easements As accessed on 30th march 2010 www.citysolicitors.org.uk/fileserver As accessed on 30th march 2010 www.home.btconnect.com/cwhls/consultations/cp186.pdf As accessed on 30th march 2010 www.chba.org.uk/library/response_to_consultation_papers/ As accessed on 30th march 2010 www.landreg.gov.uk/assets/library/documents As accessed on 30th march 2010 Read More