Category Archives: Title to Land

Dispensation for restrictive covenants futile: the dispenser had no power to dispense

There is no point negotiating a dispensation for restrictive covenants on land if the dispenser has no powers to dispense.

In the Upper Tribunal (Lands Chamber) case of Derreb Ltd v White & Ors Re The Huntsman [2015] the property was subject to the following covenant in a 1956 Conveyance:

“The property … shall not be used for any purpose other than as a Sports Ground or for the erection of detached houses for use as private residen[ces] only such buildings to be erected in such a position and in accordance with such plans and elevations including general layout and development plans as shall first be submitted to and approved …. by the Vendor’s surveyor …”

However Clause 2 of the 1956 Conveyance contained a power of release (“power of release”):

“… it shall be lawful for the Vendor (which expression shall be taken to include the estate owner or owners for the time being of property for the time being remaining subject to the trusts of the present settlement or any future re-settlement of the Cator Estate at Blackheath) … [within the current time period] to release any property which has already been sold from all or any of the stipulations or regulations to which it is now subject.”

Derreb relied on a deed dated 27th September 2013 (“the Deed of Release”) whereby the executors of the Vendor described in the 1956 Conveyance tried to release Derreb from the burden of that restriction. The respondents contended that the restriction had not been validly released.

The Tribunal cited the Supreme Court in Arnold v Britton & Others (2015). When interpreting a written contract the court had to infer “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them … to mean” by using that language in the context. The court could only take into account factual circumstances which existed at the time that the contract was made, and which were known or reasonably available to both the parties. The Court must ascertain what a reasonable person, with all the background knowledge then reasonably available to the parties would have understood the parties to have meant. If there are two possible interpretations, the court was entitled favour the interpretation which was consistent with business commonsense.

The key words were those which defined “the Vendor” in the restriction in the 1956 Conveyance. It was an inclusive definition, and not an exhaustive one. In this case, anything falling within the natural meaning of the term “Vendor” in the relevant context could also fall within that definition.

The words “for the time being” in the power of release pointed to the future. The Tribunal interpreted “for the time being” to mean “from time to time”. However the many plot owners deriving title from the Vendor clearly could not exercise the power of release.

“Vendor” did not include the personal representatives who had tried to give the Deed of Release. The express words of the power of release made it clear that the parties to the 1956 Conveyance only intended the power of release to be exerciseable for as long as the trusts of the then current settlement of the Cator Estate (or any successor re-settlement of them) remained in existence. That purpose had ceased to be effective when the Trust ended.

So the restriction remained in place and enforceable by the respondents despite the personal representatives entering into the Deed of Release.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Time limits in negligence cases: appellants had insufficient actual or constructive knowledge to trigger limitation period

In a claim for damages for negligence the right to sue accrues at the date that damage occurs, even if no-one knows about the damage at the time.

To stop the limitation period for suing running prematurely section 14A of the Limitation Act 1980 disapplies the more general time limit in section 2 of the Limitation Act 1980 and provides for two alternative periods of limitation – 6 years from the date on which the right to sue accrued or 3 years from “the starting date” which is defined in subsection (5).

Section 14A only applies to claims in negligence and has no application to claims for nuisance, misrepresentation. or breach of statutory duty.

Section 14A (5) of the Limitation Act 1980 requires that the starting date is the earliest date on which the claimant had both:

1. the knowledge required for bringing an action for damages in respect of the relevant damage and

2. the knowledge required of their right to bring such an action.

Section 14A(6)(a) then says that “the knowledge required for bringing an action for damages in respect of the relevant damage” includes knowledge of “the material facts about the damage in respect of which damages are claimed”.

Section 14A(7) says “the material facts about the damage” are such facts about the damage as would lead a reasonable victim of such damage to think it serious enough to justify his starting proceedings for damages against a defendant who did not dispute liability and could satisfy a judgment.

In the Court of Appeal case of Blakemores LDP v Scott & Anor [2015] the trial judge had thought that the relevant “damage” for the purposes of section 14A(5)-(7) was the respondent law firm’s failure, in April 2009, to file an objection to the registration of two Land Registry titles affecting a village before the procedural deadline.

The appellants, Ms Carole Scott (“Ms Scott”), Mr Eric Walker (“Mr Walker”) and Mr Christopher Balchin, were villagers. Ms Scott alone knew that the law firm had been negligent in failing to file the objection, but even Ms Scott did not know the consequences of that failure.

So an issue was whether merely knowing that the firm had been negligent in not advising that the objection should be filed before the deadline was enough to lead a reasonable person to consider it sufficiently serious to justify his instituting proceedings for damages against the law firm, assuming it to be solvent and unwilling to dispute liability.

The court said knowing the firm’s failure to file the objection before the deadline was insufficient knowledge of a “material fact about the damage” to start time running for the purposes of sections 14A(6)(a) and (7).

The appellants needed to know that the effect of the failure to file the objection was to allow the Land Registry Adjudicator to make a discretionary decision against them in relation to a title.

There were two reasons why the material fact about the damage could not just be the negligent advice or the failure to file the objection before the deadline:

1. the appellants were not experts in land registration or manorial law. They could not be taken to have known the arcane consequences of a failure to file an objection in time without being told what they were.

The consequences of the non-filing of the objection by the deadline were “a fact only ascertainable with the help of expert advice” but the last part of section 14A(10) of the Limitation Act 1980 did not mean that they should “be taken … to have [“extended constructive”] knowledge of [that] fact” because Ms Scott and Mr Walker had in April 2009 and before, taken reasonable steps to obtain expert legal advice.

2. The relevant material facts about the damage have to be such as would lead a reasonable person to consider it sufficiently serious to justify his instituting proceedings for damages against a solvent firm, not disputing liability. On the evidence Ms Scott may not have known anything that would have led a reasonable person to sue:

– she had no reason to think she would be worse off. She understood that the costs were to be covered by the law firm and not reclaimed from her

– she had reason to think the case was going to be successful, and

– most crucially she seemed unaware that the firm’s negligence had turned a clear right to have the title closed into a matter for the discretion of the adjudicator.

So the starting date for limitation purposes was not April 2009 when the failure to object occurred. A trial of the facts would be needed before that date could be properly decided.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Banksy was the Landlord’s to pass on

What term is to be implied into a lease as to the ownership of a valuable part of a let property which is justifiably removed from the property by the tenant, in accordance with the tenant’s repairing obligation, and so becomes a chattel?

Usually the term, which is to be implied, is that the chattel becomes the property of the landlord. For:

1. the default position is that every part of the property belongs to the landlord. The tenant only has a tenancy for a period of time. If the tenant thinks differently it is for the tenant to show that it is right to imply into the lease a term which leads to a contrary conclusion;

2. the mere fact that the tenant is carrying out its repairing obligation does not imply that it acquires ownership of the chattel which results from part of the property being removed;

3. even if a term could be implied that (1) waste or (2) chattels with just scrap or salvage value belong to the tenant, it did not mean that it should be implied with respect to the ownership of a chattel with a substantial value. Such a term would not be necessary, would not go without saying and would not be one that would be implied as something that might have been raised by an “officious bystander” when the terms of the lease were originally hammered out;

4. it makes no difference that the value is attributable to the spontaneous actions of a third party. Whatever solution is adopted, one party gets a windfall. Who has the better right to the windfall? Usually it will be the landlord.

In The Creative Foundation v Dreamland Leisure Ltd & Others [2015] a Mural attributed to Banksy was removed by the First Defendant (“Dreamland”) from a building at Folkestone (“the Building”). Then the wall was made good. Dreamland was the tenant of the Building.

This was done without the knowledge or permission of Stonefield Estates Ltd (“the Landlord”). The Landlord had assigned to the Claimant (“the Foundation”) its ownership of the Mural and its rights to sue Dreamland. The claim was for the return of that section of wall.

The High Court said the problem arose from the public knowledge that a Banksy had been on the site and would remain the same whether the Banksy was removed by overpainting, cleaning or removal and reinstatement of the wall. The shrine would remain a shrine, whichever method was used. So the removal of the wall was not in any event justified.

Even if it had been justified the wall would still belong to the Foundation as assignee of the Landlord’s ownership of it – under points 1-4 listed above.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Third party’s use of land for unrelated purpose did not support squatter claim

The grant of a licence to make a particular use of land is an indication that the licensor regards himself as in control of the land, and therefore indicates that he has an intention to possess it.

The parking of a vehicle in a restricted space can amount to an act of possession if
it demonstates an intention to control the space.

Acts of possession done on parts of the land to which a squatter’s title is claimed may be evidence of possession of the whole. The issue is whether there is such a ‘common character of locality’ between the different parts as to raise a reasonable inference that the disputed land belonged to the person who has possessed it in the same way as the other parts did.

In the Upper Tribunal (Tax and Chancery Chamber) case of Re Land adjoining 19 Bridge End, Billington, Clitheroe [2015] the claimant had licensed a third party to park a vehicle on hardstanding outside a garage and to the west of it (“the Western Land”) -though insufficiency of space meant any vehicle also having to encroach onto land to the front of that hard standing.

The tribunal said:

– the garage was enclosed whereas the Western Land was open land; and,

– the boundaries of the garage (its walls) were clear, whereas the boundaries of the Western Land were not obviously delineated.

The claimant’s possession of the garage for storage purposes raised no reasonable inference that the claimant was also in possession of the hard standing, still less of the whole of the Western Land. That inference was ruled out because the boundaries of the Western Land were not “obviously defined”.

Was the hard standing to the west of the garage so inherently linked to the garage itself as to raise the reasonable inference that the claimant was also in possession of that hard standing?

No, because:

(a) The claimant did not use the Western Land for storage. Instead it was used by a third party licensee for the purpose of parking a motor vehicle in connection with that licensee’s occupation of his own neighbouring house;

(b) That use for parking was not in any way related to the use of the garage, but rather to the use of that licensee’s own house, some distance from the garage; and

(c) the claimant’s possession of the garage for the purposes of storage alone could not give rise to any reasonable inference that the claimant was also in possession of the Western Land, which was used for an entirely different purpose.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Land Registry Compensation applied despite rightful owner’s occupation

Is the proprietor of a forged registered mortgage entitled to an indemnity payment under Schedule 8 to the Land Registration Act 2002 (“LRA 2002”) where the registered proprietor of the property was in actual occupation of it at the date of the mortgage?

That was the issue in the Court of Appeal case of Swift 1st Ltd v The Chief Land Registrar [2015] .

The registered proprietor of the property had the right to seek rectification (now alteration) of the register on the ground that the mortgage was forged.

This was an “overriding interest” by virtue of their occupation and therefore took precedence over the registration of the forged mortgage at the Land Registry.

Paragraph 1(2)(b) of Schedule 8 of LRA 2002 applied where the overriding interest enforced against the registered title consists of a right to seek alteration of the Land Register.

However the fact remained that the registered proprietor of the mortgage would have suffered loss because the Land Register would have been altered to remove the mortgage as an incumbrance against the property.

The court said the fact the mortgage had been registered in the first place had conferred substantive rights on the proprietor of the mortgage although it had been forged.

So it’s loss was to be considered prejudicial despite the fact that the mortgage had of itself been void for forgery.

The court therefore supported the lender’s claim for compensation against the Land Registry.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Presence of right of way ruled out any discharge of anti fencing covenant

Clarke & Ors Re 5 and 7 Hillend Lane [2015] was an application under sub-paragraphs (a), (aa), (b) and (c) of Section 84(1) of the Law of Property Act 1925 (“the Act”) to discharge a restriction preventing the erection of fences and other structures on part of amenity land, owned by the applicants, on a small housing estate in Cheshire.

The applicants erected fences in 2012 and enclosed the parcels of land into their domestic gardens. They said that the relevant part of the amenity land had fallen into neglect, and was unused.

The majority of the other residents entitled to use the land objected saying that the amenity land should be kept in common use and that in any event they had a right of way over the land which they had been prevented from exercising by the erection of the fences.

The Upper Tribunal (Lands Chamber) said in the background to the individual considerations under grounds (a), (aa), (b) and (c) was the effect of the easement.

Even if the restriction should otherwise be discharged under an individual ground of Section 84(1) of the Act, that would have been negated by the existence of the easement which would have remained in place even if the restriction had been discharged. The presence of the easement would have led the Tribunal to refuse to exercise its discretion to discharge the restriction in favour of the applicants.

The discharge of the covenant would remove one impediment to the enclosure of the amenity land, but it would not legitimise interference with the objectors’ easement.

In those circumstances it would be inappropriate to discharge the restriction.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Court ordered removal of Land Registry Caution in advance of full hearing

The effect of registering a caution against the first registration of unregistered property has tended, in practice, to be that it cannot be sold.

Furthermore the process to challenge the registration of the caution takes a considerable length of time.

If an application is made to remove the caution, the court must consider whether the respondents have a seriously arguable case for obtaining ownership of, or a proprietary interest in, that property, when the case comes to trial.

The court must also consider whether either or both parties would be adequately compensated by an award of damages for:

– the loss of the property or that proprietary interest if the caution is wrongly ordered to be removed; or

– the loss of a selling opportunity, perhaps in a falling market, if the caution is wrongly ordered to remain

in advance of a full trial of the issues.

If neither can be adequately compensated in that way, the court must decide “where the balance of convenience lies”.

In the High Court case of Williams v Seals & Ors [2014] the respondents claimed an interest in some Derbyshire farm property under the Inheritance (Provision for Family and Dependents) Act 1975 and by proprietary estoppel. They lodged a caution against first registration to prevent the property from being sold free of their claims.

The claimant was the sole executrix and beneficiary under a Will bequeathing the property and now applied to get the caution removed.

The respondents’ statement of means in support of their claim under the 1975 Act showed that they had very limited means. Mr Seals stated in his witness statement that he had no assets of any real value.

The claimant had not put any evidence before the court of her financial resources, but the respondents’ evidence indicated their belief that she was independently wealthy and the sole freehold owner of two properties in Ashbourne which were free of mortgage.

The fact that respondents were asking that the claimant’s property remain subject to the caution pending the full court hearing of these issues created an obvious difficulty where (as here) the owner was proposing an imminent sale of the property. Since in the meantime the respondents had not given the claimant any undertaking to pay damages or afford other protection in the event that the caution was ordered to be cancelled at the full hearing but had frustrated a sale in the meantime.

If the caution were not cancelled and the farm and other land could not be sold, then pending a full trial of the action the risks to the estate were threefold:

1. loss of interest on the sale price in the meantime;

2. expenditure to maintain the property and

3. the possibility of a decline in market value.

Were the respondents to fail in their claims, there was no evidence to suggest that the respondents would be in a position to meet a claim to compensate the claimant estate for any of those losses which it might suffer as a result of the caution remaining in place. On the other hand, it appeared likely that the claimant would be able to compensate the respondents for any loss resulting from the cancellation of the caution.

This conclusion was a major factor in leading the court to order the caution to be cancelled and so permit the sale of the farm to proceed.

This blog as been posted out of general interest. It does not replace the need to get bespoke legal advice in indvidual cases.

Estoppel based on promise of permanent home

In the Court of Appeal case of Southwell v Blackburn [2014] the Appellant and the Respondent had set up home together in Droitwich, in 2002. The Respondent, a divorcee with 2 daughters, had given up a secure tenancy of a property in Manchester, which she had spent roughly £15,000 on, based on his representations that she would have a long term home and the same security as a wife. The Appellant funded the purchase of the house with the equity from his old house and a repayment mortgage in his sole name which he alone repaid.

When the relationship broke down 10 years later the Respondent unsuccessfully claimed that the Appellant held the Droitwich house under a constructive trust for the benefit of both of them in equal shares. But the judge at first instance found she had an enforceable equity, in the Droitwich house, by operation of proprietary estoppel to the tune of £28,500.

It’s notable that the representations he made to her were specific as to the nature and extent of the “long term commitment” he gave her “to provide her with a secure home” but were not specific as to ownership of their new home.

The judge at first instance found that he had led the Respondent to believe she would have an entitlement which would, on any breakdown of the relationship, be recognised in the same way as the contribution of a wife to the assets of a marriage would be recogised on a marital breakdown. Without that she would not have given up her secure tenancy in Manchester.

His promise had not been of a half share in the house, but he had given her a promise of security, which he had failed to fulfil, and it would be unconscionable for the Appellant not to try to put her back in much the same position as she was before she gave up her own house.

The case is also significant in that much the larger part of her award was quantified not on what she spent on the Droitwich house but on what she had spent on the Manchester house, they not cohabited in, and that she had given up.

On top of her spending on her old home that she had given up, she had spent £4,000 – £5,000 as her contribution to setting up the new house with the Appellant. The Respondent had been relieved of her liability to pay rent in Manchester and had lived rent-free in Droitwich but her practical support had assisted him to increase his earnings by at least one major career promotion. The value of the new house had increased from £240,000 to £320,000. Allowing for inflation £20,000 was adjusted to the £28,500 she was awarded. That figure reflected the prejudice she had been subjected to by the Appellant not fulfilling his promise and should allow her to get back to her 2002 position.

The detriment to the Respondent had not been that she embarked upon a relationship with the Appellant but that she had abandoned her secure home in which she had invested, and she had then invested what little else she had in the Droitwich home even though she had no legal title to it.

It was that detrimental reliance which made the Appellant’s promise irrevocable and led to the conclusion that he could not conscionably go back on the assurance about her having a long term secure home.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Third parties who induce breaches of personal rights may not rely on non registration

To make a purchaser of a registered land title subject to personal liability in respect of adverse contractual rights concerning land, not disclosed on the register, may seem contrary to the entire scheme of land registration.

Section 29(1) Land Registration Act 2002 is the section that regulates priorities but it does not concern itself with purely personal rights. It postpones any interest affecting land to any later land dealing, if the priority of that interest was not protected at the Land Registry at the time of registration of that later land dealing so long as that later land dealing has been done for value.

The key to this conclusion is that the phrase an interest affecting land covers proprietary rights – but would not extend to purely contractual rights as section 132(3)(b) of the Land Registration Act 2002 defines “any interest affecting the estate” as “an adverse right affecting the title to the estate…”

In the High Court case of Lictor Anstalt v Mir Steel UK Ltd & Another [2014] a hot steel strip mill (“HSM”) was in a factory which the claimant (Lictor) had procured for Alphasteel (now in administration).

The removal of a HSM would have been complex, very expensive and time consuming and would have required some remedial repair works to the site.

The court ruled that the HSM formed part of the site and so, part of the land itself. Given it’s very nature, the HSM was intended as a permanent or semi permanent structure. The purpose of securing the HSM to the site had been to enjoy the site as a functioning steel mill.

An HSM of this kind would have been expected to have an operable life of up to fifty years and would only be removed in exceptional circumstances.

It therefore rejected Lictor’s primary claim that the HSM was a collection of chattels which Lictor had retained title to despite Alphasteel’s ownership of the site.

Although the HSM had become part of the land an agreement between the Lictor and Alphasteel (“the April Agreement”) had sought to:

– regulate Alphasteel’s use of the HSM creating contractual and equitable rights and obligations in relation to the it;
– to classify the HSM as a chattel;
– to preserve a contractual right for Lictor to prevent dealings with the HSM by Alphasteel as if it were the owner; and
– to preserve a contractual right for Lictor to enter onto the site in order to sever the HSM from the land and remove the HSM.

When the Administrators of Alphasteel later sold the site including the HSM on to Mir, Mir actually knew through the Administrators that by executing the associated hive down agreement and the land transfer the April Agreement would be breached.

This exposed Mir to liability to Lictor for the tort (legal wrong) of inducing breach of contract.

Will this lead to a need for additional enquiries in every case? No because the tort is based upon actual knowledge by the purchaser of the contractual rights being broken.

However it does mean that a buyer with knowledge that it’s purchase proposals will contravene someone else’s contractual rights cannot simply close their eyes and rely on the fact that those rights are not protected by a notice or a restriction on the land register.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Right to have and keep gates shut could bind successors

In the Court of Appeal case of Bradley & Anor v Heslin & Anor [2014] what was claimed was a right to maintain gates across the entrance to a joint drive, and a right to open and close those gates at all times and for all purposes connected with the enjoyment of one of the properties, No. 40 Freshfield Road Formby, Merseyside.

The claimant and respondent’s respective predecessors were Mr Thompson and Mr Ewing. Mr Thompson had done work on Mr Ewing’s land including designing and erecting gate pillars and gates, building boundary walls to the driveway, laying out and edging the driveway, planting the hedge and tarmacing the end of the driveway.

The work undertaken considerably exceeded maintenance of the shared portion of the driveway.

There was now a neighbour dispute between their successors as to Mr Thompson’s successors’ rights to close the gates.

Also it was extremely unlikely that Mr Thompson would have done that work on Mr Ewing’s land without any discussion with Mr Ewing, or that Mr Ewing would just stand by and permit it to happen.

Mr Bradley had confirmed orally that Mr Thompson had told him that he had tacitly agreed with Mr Ewing to build the gateposts but there was no direct evidence of any express formal agreement or of any specific terms.

However it could only be inferred that the building of the northern and southern pillars flanking the driveway and the installation of working gates and the other work must have been done with the express agreement of Mr Ewing and that both Mr Thompson and Mr Ewing benefited from the arrangement.

It was evident that the gates had not been not erected with the intention that they be purely ornamental and would never be shut. Mr Thompson had an aggressive dog. One purpose of the gates was to prevent it going onto the road.

It could be inferred that the gates were regularly closed for that reason.

However it could not be inferred that the default position was that the gates were always shut as the dog would probably have been chained or kept in the house as well.

When shut, the gates must have interfered somewhat with Mr Ewing’s freedom to go to and fro.

However there being no evidence of disagreement supported the view that that hindrance was consensual and reasonable.

Doubtless Mr Thompson had constructed the northern gate pillar at his own expense, to his design in his chosen location, and hung from it gates which he operated according to his need. Altogether they contributed to a coherent and unified frontage design which made the entire frontage appear to be part of Mr Thompson’s property.

Mr Thompson had gone far beyond just discharging an obligation to share the cost of maintaining a jointly used driveway. His work and contributions had given Mr Ewing extensive and enduring benefits – even if the agreement had been “tacit”.

Thereafter Mr Thompson acted as an owner of the northern pillar and gates would be expected to act and Mr Ewing did not act as such owner.

Mr Thompson had done so because he reasonably understood that he would be entitled to do so.

That such was the understanding of Mr Thompson must have been known to Mr Ewing who must have intended Mr Thompson to be so entitled in return for all the work that Mr Thompson did at his own expense on property that belonged to Mr Ewing.

If in 1979 Mr Ewing had demolished the northern pillar or painted it pink that would not have been regarded as conscionable. Equity would have estopped Mr Ewing from exercising such rights as registered proprietor of the ground on which Mr Thompson had built the pillar.

If such an estoppel originally governed the relationship between Mr Ewing and Mr Thompson then it continued to bind their successors.

Mr Thompson’s successors could assert rights to ownership of the northern pillar as (assumed) registered proprietors of it. The frontage appeared a unified whole and to be the frontage to No.40. The owners of No.40 were in actual occupation of the pillar so their equitable rights to it were protected as an old overriding interest under the Land Registration Act 1925.

Accordingly, the northern pillar belongs to the Bradleys as owners of No. 40.

As to the ownership of the gates that hung between the pillars, they belonged to the owners of No.40 as well. Mr Thompson had paid for them: and they hung between pillars which belonged to him and had since devolved to his successors as owners of No.40.

When (if ever) may the gates be closed?

It was not intended that the gates should be purely ornamental. Whilst there was no direct evidence of such agreement, the fact that they were used as soon as they were erected evidenced a “tacit” agreement between Mr Ewing and Mr Thompson that the gates were to be functional.

The owner of the property that had the right of way had gated the way and thereby interfered with the landowner’s rights.

If the gates were closed whenever those owners wanted to pass through them, then they would be seriously inconvenienced, as would their predecessors in title have been.

So for the Bradleys to close the gates over the driveway would be a trespass over the Heslins’ land, unless they had a right to do so: which right would be in the nature of an easement. The right to hang and close a gate could be a right capable of being an easement and could be acquired by grant or prescription or as here result from a proprietary estoppel. It was simply the right to occupy airspace by hanging a gate over the land forming a driveway which was quite capable of being an easement that made life better for the property that benefited from it.

It was compatible with being an easement as it did not amount to a claim to the whole beneficial use of the driveway, nor did it render the Heslins’ ownership of the driveway illusory.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.