LAND LAW- EASEMENT (PROBLEM QUESTION AND ANSWER) LATEST 2023 WITH ANSWERS AND ERXPLANATIONS- EXPERT FEEDBACK

LAND LAW- EASEMENT (PROBLEM QUESTION AND ANSWER) LATEST 2023 WITH ANSWERS AND ERXPLANATIONS- EXPERT FEEDBACK Farmer Leonard comes to see you for advice: 1. (i) Farmer Leonard has owned the freehold estate in a piece of land, Redacres, for many years. Tony has rented a small cottage on this land for the past two years. The cottage has an access road to the main highway but it is uneven and unlit and so Farmer Leonard has always allowed Tony to use the farm’s main driveway instead as it is in far better condition. Two months ago, Tony purchased the freehold of the cottage from Farmer Leonard. Since then, however, the two men have fallen out and Farmer Leonard is now . Tony is becoming very 2. (ii) Farmer Leonard is also very concerned because he has discovered that Tony is applying for planning permission to allow him to extend the cottage substantially which Farmer Leonard fears will block light entering Farmer Leonard’s garden, workshop and bathroom. Farmer Leonard also fears the extension will ruin his lovely view over neighbouring fields and impair his mobile phone signal. 3. (iii) Farmer Leonard is also very angry as he has been storing some heavy pieces of farm equipment on a strip of land that lies just outside his farm’s boundary for as long as he can remember. No one had ever questioned this. However, last week Farmer Leonard received a letter from a person claiming to be the owner of this land threatening to take Farmer Leonard to court if he does not move the equipment within 30 days. Advise Farmer Leonard (all three parts of the question carry equal marks). (i) In this case, we are advising Farmer Leonard that Tony does in fact have an easement of right of way to access Farmer Leonard’s main driveway. In order for an easement to exist, first we must satisfy the elements laid down by Re Ellenborough Park: • There is a dominant and servient tenement • The dominant and servient tenement must not be owned and occupied by the same person • The right must benefit the dominant tenement refusing to allow Tony to use the farm’s driveway abusive and threatening legal action. 2 • The right is capable of forming a subject matter of a grant There is a dominant (Farmer Leonard’s land) and servient tenement (Tony’s land). The dominant and servient tenement is not owned or occupied by the same person as it is owned and occupied by Farmer Leonard and Tony respectively. The alleged right does benefit the dominant tenement since it is not a personal right to Farmer Leonard himself, but would benefit the owner of the land (See Hill v Tupper). In order to satisfy the last requirement, 5 other requirements must be met. There is a grantor and a grantee, the right does not totally exclude Tony, the right is sufficiently definite, the right is analogous to an existing easement and the right does not place any positive burden on the Tony. Therefore, it is capable of forming a subject matter of a grant and therefore can be an easement. The next stage is to see whether the easement can be acquired. Firstly, it cannot be an express grant or an implied grant. It cannot, however, be an implied grant of necessity, where the land is left ‘landlocked’, an easement of right of way over the access to the dominant land will be granted. However, an easement will not be granted if there are alternative means to accessing the public highway (Mujwang v Drammeh) or if the access to the public highway is adequate and there are public footpaths on its side and rear (MRA Corporation Ltd v Royston). Since Tony has only been using the land for two years, it cannot be acquired by prescription. He could not have acquired an easement by implied grant/reservation of mutual intention as Farmer Leonard did not intend for the dominant tenement to be used in such way. It could be acquired by s.62 of the LPA because the dominant and servient tenements are occupied and owned by different people, that being the Farmer Leonard and Tony. Tony does not allow the Farmer Leonard some right or permission which has the capacity to be an easement, therefore it cannot proceed under s62. It could not have been obtained by Wheeldon v Burrows as there was no previous quasi-easement. Given that the easement is indeed valid, any interference with it can be fought by an action in nuisance. In other words, Tony can sue Farmer Leonard in nuisance; see Shelfer v City of London Electric Lighting Co. Farmer Leonard can bring an action in trespass against Tony if he does not have an easement. (ii) Farmer Leonard claims that Tony is going to extend the cottage substantially, blocking the light entering Farmer Leonard’s house. Under Wheeldon and Burrows, the easement of a right to light cannot be impliedly granted as Farmer Leonard had not reserved the right to access of light through the windows. Secondly, Farmer Leonard also fears that such extension will ruin his view and impair his mobile phone signal. These easements are not enforceable as they are too vague. These rights are considered insufficiently uncertain and are therefore impossible 3 easements. The right to view cannot be an easement (see Aldred’s case) and the right to uninterrupted television signals as well cannot be an easement (see Hunter v Canary Wharf). Even though it is regards to a TV signal, it cannot be directly applicable. Therefore, Farmer Leonard will have no claim for this. (iii) The third claim is based on storing equipment outside his farm’s boundary. This can exist in gross and thus cannot benefit the dominant tenement. Under Copeland and Greenhalf, possession cannot amount to an easement. Using the test in London v Bleinheim, would the easement, if granted, totally exclude the servient owner of reasonable use of his land? However, the test has been doubted by Jamieson v Moncrieff and the Law Comission, if the courts found that storing farming equipment was not too excessive of a use, then it could be an easement. The question is whether Farmer Leonard’s use of the land is so excessive that it amounts to possession is a ‘question of degree’ (Grigsby v Melville). If the courts felt that the use was too excessive, then he may be able to rely on estoppel or pay for a storage license from the owner of the adjoining land. In terms of the acquisition: • No evidence on the facts of an express grant by deed • No necessity as Farmer Leonard has access to his workshop and garden • No evidence that parties had a common intention that an easement would exist, • No conveyance under the rule of Wheeldon v Burrows • Under s.62, there is a diversity of occupation as it was occupied by the adjacent land owner and Farmer Leonard. There is no mention of the servient tenement owner allowing Farmer Leonard a right or permission, therefore it cannot proceed under s.62. A presumed grant could possibly arise, allowing the dominant owner to use the servient land ‘as of right’, without secrecy, force or permission. Given that Farmer Leonard has used the plot of land as long as he can remember, this means that the owner of the adjoining land was aware that someone had been using his land but chose not to prevent that person from using it (William v Sandy Lane). There must have been acquiescence as the servient owner must have known what is being done, has the ability to prevent it from happening but does not in fact stop it from happening. (Dalton v Angus). The standard period of a user is 20 years. Although there is no mention of the time period that the Farmer Leonard began storing is equipment, there are three possible methods: • Common Law (time immemorial) – if it has been used continuously for 20 years, it is a time immemorial 1189 – although rarely used as it can 4 rebutted if there is any evidence that the right had not been exercised since 1189. • Common Law (lost modern grant) – it is presumed that there was an existing grant of easement and the document granting such deed has disappeared • Prescription Act 1832 – where the claimant has been an uninterrupted user as of right for 20 years