Easements

Citation

Waterson, G. and Lee, R. (2001), "Easements", Property Management, Vol. 19 No. 2. https://doi.org/10.1108/pm.2001.11319bab.005

Easements

Easements

Peacock v. Custins [2000] EGCS 132; (2000) The Times, 15 December 2000

There have already been a number of cases dealing with the limitations associated with the use by the dominant land owner of easements of necessity (see, e.g. Nickerson v. Barraclough [1981] Ch. 426; [1981] 2 A11 ER 369).

Here, however, the court was concerned with the limitations imposed by an express grant of easement. To give a brief recital of the facts, in 1976 an express right of way had been granted by conveyance, entitling the dominant landowners access over land belonging to the servient landowners (in the "Times" law report it is said that the servient owners had a right of way over the dominant land, but this is presumably an error). The right of way was expressed to be for the benefit of a 15 acre plot of farmland, referred to as "the red land". From about 1977 onwards the owners of the red land also started to use the right of way to obtain access to a further area of land which they owned, a ten-acre plot referred to as "the blue land". Access over the right of way to the blue land was exercised only twice a year, and the dominant landowner farmed both the red land and the blue land together as a single unit. In the county court the judge had ruled against the servient owners on the basis that such a modest extension in the use of the easement imposed no discernible additional burden on the servient land. The Court of Appeal disagreed: in the words of Shieman, LJ:

In deciding whether the right to use a right of way included access to land other than the dominant tenement, the court was concerned with the scope of the grant having regard to its purposes and the identity of the dominant land.

It was not concerned [as such] with the extent of any increase in the likely amount of use of the servient land …

The grant had not authorised the use of the right of way for the purpose of cultivating land other than that specified in the grant and the dominant owner was not entitled to use the right for access to other land.

Hair v. Gillman [2000] 48 EG 117

As readers will be aware, cases where easements are actually created by the operation of s. 62 of the Law of Property Act 1925 (as opposed to the innumerable instances where the section effects the transfer of existing easements, as was its primary intention) are relatively few and far between. In the present case, a Mr Brice, the respondents' predecessor in title, had owned a commercial property with a forecourt to the front and other land to the rear. In 1972 Mr Brice had built a nursery school on the land to the rear and granted a seven-year lease of the nursery school to the appellant, together with an express grant of right of way to the nursery school over a passage to the side of the principal building. At the same time he had also, albeit quite informally, given the appellant permission to park her car on the forecourt in common with himself and any others who he permitted to do so.

In 1979, the appellant purchased the freehold reversion of the nursery school building. In 1985 the respondents purchased the freehold of the principal building. The question which arose was whether the informal permission given to the appellant to use the forecourt for parking her car had been converted into a true easement by the conveyance of 1979 by s. 62 of the 1925 Act. Yes it had, said the Court of Appeal: s. 62 (1) provides that:

a conveyance of land shall be deemed to include and shall … operate to convey with the land all … 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 and parcel of or appurtenant to the land or any part thereof.

This was sufficiently wide to cover the present circumstances and to cause the informal permission to "crystalise" into an easement on the execution of the conveyance in 1979. In the words of Chadwick, L.J., quoting in part from the earlier case of Wright v. Macadam [1949] 2KB 744:

The result in this case is that Mr Brice, through his act of kindness in allowing [the appellant] to use the forecourt for parking her car and then conveying property to her, has inadvertently created an easement that binds his own property in the hands of his successors. It may be a matter of regret that decisions in this kind of case may tend to discourage landlords from acts of kindness to their tenants. But there it is; that is the law …