Land Law and Procedures of Acquisition - Essay Example

?LAW The question requires a comparison as well as contrast between section 62 Law of Property Act and the rule in Wheeldon v. Burrows in respect of acquisition of easements. A general analysis in respect of easements would be looked into before comparing and contrasting the aforementioned different procedures of acquisition. The development of each of these areas of law would be discussed in turn and any similarity as well as difference would looked into so as to make an effective comparison between the two difference applications that have been provided for that is one by way of statute and the other would be that of the rule of Wheeldon v. Burrows and the cases that have effectively developed the rule and applied the provision. Easements are where a benefit is provided to the dominant tenement that is the land which benefits from the easement, which provides the person who owns the dominant tenement of land to use the easement. The second element in respect of an easement is the based on the fact that since there is a benefit that is accruing there is a burden on what is known as the servient tenement or in other words the land that has been burdened by the easement. A vital principle related to an easement is the fact that it is a proprietary interest and the accruing benefit and burden, subject to the laws of registered and unregistered land, transfer, if the land that is either the servient or dominant tenement is transferred to another person. (Cursley et al 2009) The creation of an easement is dependent upon the satisfaction of a criterion that had been laid down in Re Ellenborough Park1 which are generally referred to when determining the existence of an easement. The first and foremost requirement is the fact that there must be a dominant and servient tenement thus eliminating the possibility and stating that the easement cannot exist in gross. (Hawkins v. Rutler)2. The second requirement is the fact that the dominant and servient tenement’s occupation and ownership must be by different persons (Roe v. Siddons)3. However, according to Wright v. Macadam4 the occupation by different persons would allow an easement to be created. The Third element is the fact the easement must benefit the dominant tenement and this is dependent upon the proximity of the servient tenement; it also been stated that the advantage should not be purely personal (Hill v Tupper); and the right must not that be of a recreational user. The fourth criterion is that the easement that has been alleged must be capable of formation of subject matter of a grant. Case law has developed upon the criterion and has provided guidelines in this respect, the first one being that there must be a capable grantor, which is clear in the facts at hand, the second that there must be a grantee which is evident because the tenants were granted the rights; thirdly the subject matter of grant is sufficiently certain, which is clear enough in respect of the facts that is the right to cross; and finally the right must be capable of being called an easement that is it is covered under the rights which have been recognized to be easements, which has been done in respect of the right to cross. The final factor that has not been expressly listed down in the case was that of public policy which is considered when determining whether an easement is existent or not. (Grey et al 2006) The next aspect that is considered is that easement can be existent either legally or under equity as laid down under section 1 of the Law of Property Act (LPA) 1925. (Cooke 2006) As far as legal easements are considered there are a number of formalities that need to be fulfilled. The first requirement is that for a legal easement there must either be a fee simple absolute in possession or as an adjunct to a term of years (section 1 Law of Property Act 1925). Secondly easements can only be legal if created by way of statute, by prescription, by deed or registered disposition. All other easement are equitable in nature. (Dixon 2004) As far easement by prescription is concerned it is by way of long use and is by way of common law prescription, ‘lost modern grant and/or Prescription Act 1832. In respect of easement by prescription it can be in fee simple only. (Dixon 2004) The differentiation in respect of legal and equitable easement is necessary because of its effect on registered and unregistered land. As far as registered land is concerned the benefit of the easement is part of the dominant tenement and subsequently passes to the purchaser or transferee and is therefore not dependent upon whether the easement is legal or equitable. In respect of servient tenement the rights have to be registered against the title and if the rights were created before first registration of title then it is an overriding interest under s.70(1)(a) Law of Property Act 1925. (Dixon 2004) As far as equitable easements are concerned it has been stated that they exist as minor interests and must be registered otherwise they would be void against purchaser of the servient tenement. However, in Thatcher v. Douglas5 it was said by the Court of Appeal that equitable easements which are openly exercised and enjoyed could be overriding interests under section 70(1)(a) Law of Property Act 1925Furthermore if the person is actual occupation of the servient land then an overriding interest under s.70(1)(g) Law of Property Act 1925can be said to be existent (Mackenzie et al 1997) The different ways in which easements are created are that of express grant that is where by way of express grant an easement is granted. The other way is that of express reservation that is where the easement is expressly reserved by the potential owner of the dominant tenement. In respect of implied creation by necessity it has been stated that implied grant must show that there has been a necessity for such creation and the same goes for implied reservation as well. (Dixon 2004) In respect of implied easement there is the Wheeldon v. Burrows case for grant only that is it can be said to be a variation of where someone sells/leases a certain portion of the land that he owned and by way of express provisions agrees to grant to the purchaser an easement thereby burdening the part that has been retained and benefitting the part that is sold. The situation in respect of Wheeldon is that and easement is created even though it has not been expressly granted, but by way of it being implied into the sale of the land. The rule states that if someone sells a portion of his land to another, such a transfer by the used of implied creation leads to inclusion of grant of the rights that are considered to be easements or quasi-easements, which the person who is selling the land, enjoyed before the said transfer for the benefit of the portion that is transferred, subject to the fact that the rights can be either classified as ‘continuous or apparent’ or ‘reasonably necessary for the enjoyment of’ the part that has been transferred. (Dixon 2004) There are certain aspects which need to be considered when looking at the rule. The first one being that that the applicability of the rule in Wheeldon can be excluded expressly, by stipulating that only those easements that have been granted expressly would be included. However, in Millman v. Ellis6 it was held that grant of smaller easement which was similar to the wider easement would not lead to the exclusion of the implied wider easement. Furthermore, in Hillman v. Rogers7 the right of way under Wheeldon was not excluded by way of an express grant to cross the road. The second element is that easements that come under the Wheeldon rule are those that satisfy the criteria of Ellenborough. The third element is the applicability of the rule being applied to quasi-easements that were used by the owner of whole land for the advantage of the portion sold prior to sale or lease. Thus the advantage must have been used by the owner or by his agents (Hillman v. Rogers). The next element is consideration of the fact that the quasi-easement must either been’ continuous or apparent’ or ‘necessary for the reasonable enjoyment’ of the portion that has been granted. Most of the cases point out to the requirement of both, but this can be seen due to the presence of both the aforementioned requirements. In respect of a quasi easement being continuous and apparent the necessity is that of it being visible if an inspections of the servient land upon which such a grant has been made is there or the use is obvious for the benefit of the part that has been sold. As for the alternate requirement of the easement being necessary for the reasonable enjoyment of the dominant portion, it has led to problems. Such use of term ‘necessary for reasonable enjoyment’ has been held not to be equated with ‘necessity’ (Hillman v. Rogers). Another aspect of Wheeldon is where the original landowner grants a quasi-dominant to one party and a quasi-servient to the other, at the same time, Wheeldon leads to creation of an easement. (Swansborough v. Coventry)8. Thus simultaneous transfer would lead to creation of an easement. (Mackenzie et al 1997) The character of the easement that is created by Wheeldon is dependent upon the document which has led to its creation, thus it has been by way of a deed then the easement would be legal, and if by way of a written contract, it would be equitable (Borman v. Griffiths). (Dixon 2004) Another method of creation of an implied easement is by way of section 62 of the Law of Property Act 1925 the application of which is triggered if an owner sells/leases a part of the land and retains some part, the part retained is burdened with certain easements that benefit the part that has been sold. (Dixon 2004) The major part of section 62 of the Law of Property Act 1925 states as follows ‘…a conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures…liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof’. (Mackenzie et al 1997) The conditions that must be fulfilled in order for an easement to be created are as follows, the first and foremost requirement is that the sale or lease must be way of a conveyance which is defined by the Law of Property Act 1925 as a deed/registered disposition and thus no easement would be created under section 62 Law of Property Act 1925 where the lease is by way of a written contract, leading to the fact that only legal easements are created by the aforementioned section; the applicability of section 62 Law of Property Act 1925 can be excluded if clear words are used in the conveyances; Similar to Wheeldon only those rights which can be created as express easements and satisfy the Ellenborough criteria can be impliedly created by section 62. A permission to park a car can be an easement under the aforementioned section (Hair v. Gillman). One of the major distinction between Wheeldon and section 62 is the fact that section 62 Law of Property Act 1925 requires separated occupation of the two land/plots before the lease/sale took place or in other words ‘prior diversity of occupation’ (Sovmots v. Secretary of State for the Environment).(Dixon 2004) Subject to satisfaction of the aforementioned conditions and the sale/lease by way of deed/registered disposition, there would be grant (implied) of legal easements of rights which had been enjoyed for the benefit of the land sold. (Dixon 2004) It is important to point out that the operation of section 62 Law of Property Act 1925 does require a proper factual backgrounds as well as fulfillment of the aforementioned legal formalities that have been laid down. Furthermore one of the important point that requires consideration is that under the operation of section 62 of the Law of Property Act 1925 there is a creation of a new easement which was not existent before and since the question is not of the purchase of already burdened land there are no questions as to registration. (Mackenzie et al 1997) It has been at times thought that the applicability of Wheeldon and section 62 Law of Property Act 1925 is so similar that they are interchangeable, however, this is not the case. Even though the applicability might be to the same factual background, but the conditions of dependency are different in respect of details thereby leading to the conclusion that they are mutually exclusive. The distinguishing factors are that in respect of Wheeldon there is the requirement of common vendor who must be in occupation before the land (dominant part) was sold and the potential easement was used by him. Contrary to that section 62 Law of Property Act 1925 requires separate occupation prior to sale of dominant part and the right being enjoyed by the said occupier against the owner. Furthermore the creation of easements in respect of Wheeldon is only to the extent where such a right was either ‘continuous and apparent’ or ‘necessary for the reasonable enjoyment of the land’; contrary to that section 62 Law of Property Act 1925 does not have any such limitation. In respect of Wheeldon there can be implied easements in respect of a sale or lease which can be legal or equitable and therefore lead to creation of legal or equitable easements. However, the operation of section 62 Law of Property Act 1925 is in respect of sale or lease by deed and the creation of easements is only to the extent of it being legal. One of the common grounds of similarity between the two is that the fact that there is existence of the provision that both Wheeldon v. Burrows and section 62 of the Law of Property Act 1925 can be excluded if there are clear words which have been stipulated within the conveyance of the alleged dominant tenement. Thus an exclusion by way of the use of express provision is the fact that allows such an exemption to be created whereby the parties that have entered into negotiations and have effectively completed upon a conveyance can be said to be in a better position in particular the alleged dominant tenement being purchased by an unwary person would save the hassle as well as the problems that can be associated in a transaction which can trigger the provision under the rule laid down in Wheeldon v. Burrows as well as the application of section 62 of the Law of Property Act 1925 imposing burden on the said tenement.(Dixon 2004) References COOKE, E. (2006). Land law. Oxford, Oxford University Press CURSLEY, J., DAVYS, M., & GREEN, K. (2009). Land law. Basingstoke, Palgrave Macmillan DIXON, M. (2004). Dixon on land law. London, Cavendish GRAY, K. J., GRAY, S. F., & GRAY, K. J. (2006). Land law. Oxford, Oxford University Press. MACKENZIE, J.-A., & PHILLIPS, M. (1997). A practical approach to land law. London, Blackstone Press Ltd Read More