SimonSmith
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Hello,
I've just this question regarding easements to do, but it's confusing me with what stuff I need to talk about for questions a, b and c.
Can anybody help me out?
Thanks

Here's the question:
Charles owned a large freehold property in Northumberland, title to which was registered at HM Land Registry. Two years ago, he sold a part of the property, consisting of a cottage and some woodland, to Sally who wanted a quiet place to live.

Charles had a young son and, before the sale to Sally, the two of them used to stay in the cottage at weekends and go for picnics in the woodland area. On completion of her purchase, Sally moved into the cottage, but Charles and his son still continued their practice of picnicking in the woodland now belonging to Sally.

The pipes supplying drinking water to the cottage ran across Charles’ retained land but there had been no reference to this in the deed of conveyance to Sally (although Sally had seen evidence of the water pipes crossing Charles’ land before she bought the cottage). Sally had, however, expressly negotiated a right to park her car on Charles’ land and this was recorded in the deed of conveyance as ‘a right to park in the parking area shown shaded grey on the plan’. The area shown shaded grey was just large enough for Sally to park her car there and leave space for one other.

Four months ago Charles sold his retained land to Brigid and Paul.

Brigid and Paul now want to develop part of their land, which would include digging up the area where Sally parks and across which the water pipes run. They would like your advice on the following:-

(a) whether they can stop Sally parking on their land; and
(b) whether they can block Sally’s water supply; and
(c) whether they are entitled to picnic in her woodland area.
Advise Brigid and Paul.
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All easements problem questions are the same, pretty much. For each of the three possible rights, you need to discuss:

1) Whether they can exist as easements, i.e. whether they meet the criteria in re Ellenborough Park and so on.

2) Whether, if they can exist as easements, they have been acquired as easements, either expressly, or impliedly - by necessity, common intention, s 62 LPA, or Wheeldon v Burrows.

3) If they have been acquired, are they enforceable against the current party owning the servient tenement (which tbh is usually a trivial part of an easement question).
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SimonSmith
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Ok thank you!
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(Original post by SimonSmith)
Ok thank you!
No problem - post what you've managed to do here if you get stuck and I'll take a look
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SimonSmith
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(Original post by Forum User)
No problem - post what you've managed to do here if you get stuck and I'll take a look
This is what I've done so far; I've got some questions about B and C though...


A.
For an easement to exist, it must meet the characteristics laid down in the case of Re Ellenborough Park:
1. There must be a dominant and servient tenement;
2. The right must benefit the dominant land;
3. The dominant and servient tenements must not be owned and occupied by the same person;
4. The right must be capable of being granted by deed.

Sally parking her car on Charles’ land would suggest that the land where Charles lives on is the servient tenement, as it is carrying the burden of the easement.
The right must benefit the dominant land means whether the right makes the dominant tenement a better and more convenient property. Can be said that the right does benefit the dominant land (i.e. where Sally lives) as it means that she does not have to park in her woodland area.
Clearly, as Sally is parking her car on Charles’ land it shows that the dominant and servient tenements are owned by different people.
This right to park on Charles’ land was recorded in the deed of conveyance when Sally bought the land from Charles.
So Sally does have an easement.
There has been dispute as to whether parking of cars on another person’s land is an easement in case law. However, in the scenario it states that where Sally parks her car there is enough space for another car. This would suggest that it has not excluded the servient owner, Charles from his own land, if it did it would not be an easement.

Next to consider is whether Sally’s easement has been acquired as an easement. It appears that Sally’s easement was created expressly as it was written into the conveyance deed stating ‘a right to park in the parking area shown shaded grey on the plan.

Section 27 of the Land Registration Act 2002 states that an express easement must be put on the charges register of the servient title for the new owner. If this has not been done, it will not be a legal easement. This must be have been done before Brigid and Paul became the new registered title owners.

B.
There was no mention of the water pipes in the deed of conveyance yet Sally saw these pipes before she bought the land from Charles.
So the dominant and servient tenements are owned by separate people. Brigid and Paul’s land carry’s the burden as the pipes run across their land to reach Sally’s cottage.
Having the pipes run across the land does benefit the dominant tenement because if they were not there, it would be harder to live in or stay at the cottage because it would not have any running water. Can be argued that it is ‘reasonably necessary for the better enjoyment of the land.’
The pipes are capable of being an easement. There is a capable grantor (Brigid & Paul) and a capable grantee (Sally). The right would be sufficiently definite as allowing water pipes to cross a person’s land is not a vague right. New easements are only unlikely to not be recognised if it involves expenditure from the servient owner, the exception being Crow v Wood or if it’s a negative right e.g. right to stop a neighbour doing something on his own land.

C.
Charles sold the land where he and his son went for picnics to Sally, there was no mention in the deed of conveyance about Charles continuing to do this after the sale.


With B, I wasn't sure what type of implied easement it would be and whether or not, I don't think they would be allowed to block it.
With C, I'm quite unsure. In short I don't think they could continue to picnic on the land.
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For (A), 'does the right lie in grant' does not just mean 'is it something you can write down in a deed'. If it did, it would be virtually meaningless. You've gone on to discuss the ouster principle later, but the way you've done it doesn't make sense. You said 'so Sally does have an easement', and then the next sentence is whether a right to park can be an easement. Obviously the conclusion 'Sally does have an easement' cannot precede a discussion about whether the right can be an easement at all. Your discussion about rights of parking needs to mention some case law - Batchelor v Marlow, Moncrieff v Jamieson, Kettel v Bloomfield, etc.

(B) Where you've said the right to pipes is 'reasonably necessary for the better enjoyment of the land'. There is no such test at least in determining whether the right can be an easement. No-one has ever suggested that easements can only exist if they are 'reasonably necessary', otherwise the right in re Ellenborough Park, being a right to use a garden for walking around, would surely have failed. Where 'reasonably necessary' comes in is when you start to discuss whether the right can be implied under Wheeldon v Burrows. Go look at the test from that case. If you think Wheeldon v Burrows fails (I don't think it does) you might consider the application of s 62 as (dubiously) explained in P&S Platt v Crouch.

I don't know if I would launch into a discussion of 'new categories' of easement when discussing water pipes running across land. That has been recognised as an easement for at least 150 years, I would think.

(C) You didn't discuss whether this could be an easement, i.e. does it meet the re Ellenborough Park criteria? Then notice that this is a reservation rather than a grant. Wheeldon v Burrows and s 62 LPA cannot operate to imply a reservation into a conveyance. So the only way it could be implied would be by necessity, or common intention (there not being anywhere near enough time to gain a prescriptive right here). Apply the cases on both necessity and common intention and come to a conclusion.

Two general tip not restricted in its application to this question:

You wrote: "There was no mention of the water pipes in the deed of conveyance yet Sally saw these pipes before she bought the land from Charles."

If I was the examiner (I'm not an examiner, just a law student), I would be thinking 'so what'. This sentence just restates the facts of the question, and in that respect is a waste of your time writing it. You should mention the facts but only when you are applying legal rules to them. So you need to state how legal easements can be acquired expressly by deed, and then the fact that no deed was used here is relevant to that. Similarly with the second part of the sentence. Why does it matter that Sally saw the pipes (if you don't know the answer to this, look at Wheeldon v Burrows and Ward v Kirkland)

2. Needs way more statements of the legal rules and use of authority. You've only mentioned two cases in that answer and Crow v Wood isn't relevant, as there is no suggestion of any easement of fencing in the question. Same for statutes, only one mentioned is s 27 LRA 2002, I would think that s 1(2), s 52, s 62 LPA 1925; and s 29 and Sch 3 Para 3 LRA 2002 would also feature in a complete answer to this question.
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SimonSmith
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OK thanks for the detailed review
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