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Land Law Help: Problem Q on Easements...

Hi there, I'm stuck on the emboldened part of the question:

Farzim and Jabin acquired adjoining houses on a country estate in 2000 and became firm friends. In 2002 Farzim allowed Jabin to place a television aerial on his (Farzim’s) roof because it improved reception, and a year later Farzim allowed Jabin to park his second car on a particular part of his land. Farzim died last year and his house has been sold to Tarnjit who wants the aerial removed and refuses to allow Jabin to park his car on his property.
Advise Jabin whether he may claim two easements

Provided the right has satisfied the conditions of not constituting joint occupation, how would such a right be acquired? I would have guessed impliedly, but under Wheeldon v Burrows, isn't it that the right has to be used by the transferor for the benefit of the part granted?

Thanks!

Reply 1

The West Wing

Look at the parking cases. London & Blenheim Estates , Wright v Macadam, Batchelor v. Marlow.

The sentence in bold probably can't amount to an easement but this can be challenged.

Regarding how they arise there's no suggestion it's legal. I don't think you can argue necessity (implication) either (possible challenge but doubtful whether it would succeed). Basically he is screwed.

Reply 2

Alchemy647

I'm somewhat familiar with the parking cases, but my issue is more related to how the guy's right could have come about. Perhaps he is screwed, as you put it...

Any other takers?

Reply 3

chigz32

TV reception would be too vague, see Hunter v Canary Wharf. The easement must lie in grant, which basically means it must have the characteristics of an easement. Re Ellenborough Park states that must be specific.

The parking I would have said was fine. Using either the Bleinkheim/Jaimeson rules, I'd say that was okay.

It would probably arise via common intention. For the reasonable use of the land, maybe? Also try s62.

Reply 4

Alchemy647

I really didn't think of common intention....I thought it sort of borderlined nececessity. As in Wong v Beaumont - where ventilation shafts had to be implied - I think I'm way off though.

I thought s.62 only applied to where

'a vendor has sold a portion of his land, partcularly if the part sold has been in seperate occupation to the part retained;

a lessor reknews a lease, at a time when he owns a legal estate in land over which the lessee has been enjoing right additional to those contained in the lease'

Reply 5

chigz32

The point in Wong vs Beaumount was that was it neccessary, OR was it a consequence from the use of the land, ie. common intent. Here, I'd say it was a consequence from the use of the land, and that it was a common intention. I would never think this as neccessity; its not neccessary for the actual use, not enjoyment, of the land.

S62 LPA is where general words imply the conveyene. Its pretty much where the right in gross is turned into property rights. Theres a few steps to apply too.

Reply 6

Alchemy647

Here's my point about s.62, just to make it clearer -

In International Tea Stores v Hobbs - a tenant's right of way was over his landlord's property was implied by virtue of the predecessor of s.62 (s.6(2) Conveyancing Act 1881) when the land was conveyed to the former tenant.

In Wright v Macadam - a tenant's right of storage was not included when her tenancy was reknewed, yet implied by virtue of s.62.

In both these cases, the servient/dominant owners were the same persons after the conveyance, whereas in the scenario they're not. Does this make any kind of difference?

I always thought that a piece of land had to be split for s.62 to apply, so that there is effectively a quasi-dominant/quasi-servient tenement which the transferor enjoys before a conveyance and easement becomes valid.