Tag Archives: Easements

No bar to the existence of recreational easements

There was no English (or Scottish) precedent authoritatively deciding whether or not an easement can legally exist to use a golf course, swimming pool or tennis court etc.

In the High Court case of Regency Villas Title Ltd & Ors v Diamond Resorts (Europe) Ltd & Anor [2015] the court ruled that there is no legal impediment to the grant of such an easement, provided the intention to grant an easement, as opposed to a merely personal right, is clear when interpreting the grant in the light of the material surrounding circumstances.

The case concerned the 1981 grant of a “right for the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities …. on the Transferor’s adjoining estate”.

The High Court said there was nothing vague or excessively wide about the rights.

They clearly extended to all recreational and sporting facilities on the estate, and to the gardens, and must include facilities that were not present or planned in 1981, or which may have been significantly improved since then.

To interpret the rights as limited to the actual facilities which were on site or planned in 1981 was unrealistic and might inhibit the servient owner from introducing improvements or replacements or adding facilities which would benefit everyone. After all if the rights did not extend to the new or replacement facilities, any alteration to the facilities, might amount to a substantial interference with the claimants’ existing rights. That could not have been intended on any sensible interpretation of the rights.

Worse still to interpret the rights in such a restrictive way would have allowed the estate landowners or their predecessors to profit from their own default in having filled the outdoor pool before the current estate owners had constructed a new one in the basement of the Mansion House. The point had been rendered academic as the rights under the 1981 Transfer expressly extended to the basement, where the pool now happened to be.

On appeal to the Court of Appeal the court said it was necessary to interpret the actual words of the grant of the right “to use the [existing sporting and recreational facilities] and the ground and basement floor of [the Mansion House], [the] gardens and any other sporting or recreational facilities … on the [defendants’] adjoining estate”.

The most natural meaning of these words was that what was intended was a grant of the right to use the garden, the existing sporting and recreational facilities, and any sporting or recreational facilities only to be found at the date of the grant on the ground or basement floors of the Mansion House.

There was no element of futurity in the words used, so it could not include any future sporting or recreational facilities that might later be provided by the defendants on their land.

The lack of futurity in the grant contrasted to the second grant which was the “right to the full and free passage of gas water [etc.] … now in under or over the [Transferor’s] adjoining land or constructed within 80 years of the date hereof”.

Could a new or improved facility replacing an existing facility of the same type on the same area of ground be covered. Yes. The easement was granted for so long as the dominant and servient tenements existed, so that it would make no sense to grant the right to use the present tennis courts, but not any rebuilt tennis courts later provided on the same ground.

The grant could not be interpreted widely enough to cover any major extensions, substitutions or moved facilities. The grant was to use “the” swimming pool, not any swimming pool anywhere on the servient land. The same must apply to the other facilities.

It was perfectly possible that the golf course might be extended on to some acres of new land also forming part of the Estate or that further tennis courts might be built adjoining the existing ones. But the court could not see how such extensions could be covered, because the essence of an easement was the land over which it is granted.

The court said in passing that a minor or de minimis extension to the land used by the existing or replacement facilities amounting to an incremental increase in the land used by the golf course or, say, a small extension to the existing land used by the swimming pool or to the run back used by the tennis courts, would be covered on the proper interpretation of the grant.

A completely new facility on new ground would not be covered, but a replacement facility, even one that had been slightly extended beyond the ground used by the original facility, would be.

In the absence of the most specific words, a grant would not be interpreted as entitling the dominant owner to use any facility that might be constructed anywhere on the servient tenement.

Here the grant was only a grant to use the existing facilities as they stood at the date of 1981 transfer, together with any new, improved or replacement facilities of the same kind replacing the existing facilities on the same areas of land, subject only to minor or de minimis extensions, but not any substantial extensions of such facilities on additional areas of land.

The claimants argued that, because there already existed an easement over the whole of the basement of the Mansion House, the building of a pool there in place of the existing facilities could not affect that easement.

To amount to an easement the grant had to be more than of a personal right to use chattels and services provided by the defendants in the ground floor and basement e.g the television or restaurant on the ground floor or a sun bed or sauna.

Since mere personal rights of that nature (but no valid easement) were granted over the basement of the Mansion House in 1981, there can be no valid easement of a swimming pool built after the grant on the same land. Neither could the new swimming pool be regarded as a direct substitute for the old one, elsewhere on the Estate, that the defendants had filled in in the year 2000. The easement was in respect of the land on which the old outdoor pool had been constructed in 1981, and mere personal rights (not amounting to any valid easement) had been granted over the basement of the Mansion House where the new swimming pool was now situated.

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

Could lapsed Land Registry application saddle land with right of way?

Where someone buys real estate they only have an equitable interest in it until it is registered in their name at the Land Registry. Registration perfects their legal ownership. Until that registration the seller is deemed to hold the land on trust for the buyer.

In the High Court case of Baker & Anor v Craggs [2016] two areas of land were being sold by the two joint owners. The second area sold should have had a right of way over the yard of the first area sold but the Sellers omitted to reserve it.

However the Sellers’ failure to reserve that right of way did not prevent them selling the second area with that “right of way”.

Normally transferring the first area without reserving that right of way would have disabled the Sellers from granting it to the Second Buyers. However fate intervened.

The “grant” of the right might still be valid if the Sellers were still the “legal owners” of the yard at the time the Second Buyers bought the second area with the “right of way”.

The Second Buyers faced four hurdles:

1. Were the Sellers still legal owners of the yard notwithstanding that they had already “sold” it to the First Buyer? The court said yes because there had been a major delay getting the first sale registered at the Land Registry due to a problem with the transfer plan. It had been overtaken in the registration stakes by the second sale. Pending registration the Sellers had owned the legal estate in the yard on trust for the First Buyer.

2. Did the First Buyer still have priority over the Second Buyers because of his Land Registry search and application? Answer: no because the priority conferred by them had lapsed when the First Buyer’s original Land Registry application was cancelled due to delays dealing with the plan problem.

3. Was the priority of the First Buyer’s interest nonetheless protected by the fact that he had been in “actual occupation” of the yard since his purchase? Answer: Yes it had been pretty obvious to the Second Buyers. The First Buyer had been doing some building work.

4. Was 3 above fatal to the Second Buyers’ right of way or could the Second Buyers show that the First Buyer’s interest in the yard was “overreached” by the Second Buyers’ purchase of the second area and that right of way so as to be nevertheless postponed to them? The court said: yes. Pending the First Buyer getting registered the Sellers held the yard on trust for the First Buyer but the Sellers nonetheless had all the sale powers of an absolute owner and the First Buyer’s interest in the yard would be overreached so as to be subordinated to the Second Buyers’ purchase and right of way provided (as occurred here) all the sale proceeds of the second area were paid to both the Sellers who still held the yard as trustees for the First Buyer pending resolution of the plan problem and the registration of the First Buyer’s ownership of the yard.

This use of the doctrine of overreaching seems very harsh on the First Buyer as he had no entitlement to any of the sale proceeds of the second area. The Sellers granting a burdensome right of way through the yard to the Second Buyers seems rather inconsistent with the concept of the Sellers holding the yard on trust for the First Buyer.

The very technical concept of overreaching appears to have come to the court’s aid to avoid the Second Buyers from being landlocked.

Since this blog was first published the idea that the grant of a right of way to the Second Buyer could overreach the First Buyer’s interest in the yard has been overturned by the Court of Appeal.

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

The need for good PR in rights of light cases

In Scandia Care Ltd and another v Ottercroft Ltd [2016] the developer planned a ground floor café with flats above. This included a new fire escape staircase.

The new staircase obscured the light to the neighbouring restaurant’s kitchen windows.

The restaurant applied for an injunction to get the staircase removed at a cost to the developer of £6,000 even though the loss of light was valued at a mere £886.

The Court of Appeal was unimpressed by the attitude and behaviour of the developer, whose director was thought to have acted in a peremptory and unneighbourly way.

He built the staircase in the face of legal threats knowing it would affect the light and inconsistently with undertakings not to infringe the neighbour’s light, at a time when the neighbour was not there to stop it.

The Court of Appeal therefore awarded an injunction instead of damages and in part as a deterrent to others.

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

Fire escape right implied from common intention

In Nickerson v Barraclough [1981] Eveleigh LJ said:

“Section 62 [of the Law of Property Act 1925] says: ‘A conveyance of land shall be deemed to include…’ a number of things, all of which are clearly shown to be in actual existence either… as a right or as a factual advantage. It conveys that which is there to be conveyed, Where there has been no use at all within a reasonable period preceding the date of the conveyance (whether or not there had been use outside that period) it is clear that section 62 cannot operate to create an easement.”

“Section 62 is a conveyancing section; it passes only that which actually exists already, be it, for example, a right of easement, or be it an advantage actually enjoyed.”

So in Linvale Investments Ltd v Walker [2016] to establish an easement by virtue of section 62 of the Law of Property Act, the claimant needed to establish that there was a use in a regular pattern and during a reasonable period of time before the land was partitioned by land transfers.

The High Court said it was not enough that the fire escape doors and gravel path over the transferor’s other land were obvious. It was fatal to both claims to an implied fire escape easement under:

= Section 62 and

Wheeldon v Burrows[1879]

that the escape route over the transferor’s other land had not for a reasonable period before the partition been used as a fire escape or for fire drill.

So neither section 62 of the Law of Property Act or the rule in Wheeldon v Burrows assisted the claimant.

However in Pwllbach Colliery Co Ltd v Woodman [1915] Lord Parker recognised:

“The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property”.

Here “the common intention … was clearly that the land be fully occupied and be fully occupied in order that the maximum profit could be realised from the property. In order for that to happen, there needed to be a right of way allowing the full extent of the building to be utilised with the operation of the existing fire escapes …The plain common intention of the parties was for the land to continue to enjoy the benefit of those fire exits and also the gravel pathway outside the property for the purpose of obtaining access out onto the concrete hard standing and the highway beyond.”

So though there had been no evidence of user of the fire egress and right of way, the claimant had satisfied the necessary test to establish that there was a right of way by reason of it being the intention of the parties to the transfers.

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

“Private car park” sign: denied property rights by long use by customers

Where a neighbour claims a right of way over a landowner’s land by long use, does it matter that the use has not been by them, or their agents, but instead, for example, by their customers such that it would not have been possible for the landowner to sue the neighbour for trespass?

In fact there had been no trace in case law of a requirement that the use relied on by the neighbour must amount to a trespass by the neighbour against the landowner.

All that had been required was that the landowner should have been in a position to challenge or stop the use e.g by erecting a gate or barrier across the roadway.

It is enough that the use in question benefits the neighbour’s property for that property to acquire the right of way by long use. The fact that it was also beneficial to a customer to deliver or collect across the landowner’s land does not alter the fact that it is the neighbour’s property that benefits from that use.

‘It is sufficient that the use accommodates, or benefits, the dominant land, in the sense of being closely connected with the normal enjoyment of the dominant land’. (Lord Neuberger M.R in London Tara Hotel Limited v. Kensington Close Hotel Limited [2012] ).

So in the recent Upper Tribunal (Tax and Chancery) case of Bennett & Anor v Winterburn & Anor [2015] where a fish and chip shop claimed vehicular and pedestrian rights of way by 20 years’ plus use across a Conservative Club Car Park, the fact that it had been customers doing this was no barrier to their use gaining the fish and chip shop rights of way across the car park by long use.

However in Winterburn & Anor v Bennett & Anor [2016] the Court of Appeal has ruled that the acquisition of pedestrian and vehicular rights of way was prevented by the sign “Private car park. For the use of club patrons only. By order of the committee” plainly visible to anyone entering the car park from the road.

Circumstances must indicate to persons using the land that the owner objects and continues to object to the parking.

The issue is whether the owner has taken sufficient steps so as to effectively indicate that the unlawful use is not acquiesced to.

In this case, the presence of the signs clearly indicated the owner’s continuing objection to unauthorised parking.

The protest needed to be proportionate to the use. But the continuous presence of the signs asserting that it was private property for use by the Club’s patrons only was a proportionate protest.

The chip shop owners argued that the signs were being ignored and it had been incumbent on the owner of the land to take such further steps as were practicable to prevent the land being used for parking.

The Court of Appeal said nothing in legal precedent or in principle required an owner of land to erect a chain across the entrance to their car park, or object orally, or write letters of objection, or threaten or commence legal proceedings to prevent the wrongdoers from acquiring a legal right. Where the owner had made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land could not be said to be “as of right”.

Having made his protest clear, the owner need not take further steps of confronting the wrongdoers known to him orally or in writing, still less need they go to the expense and trouble of legal proceedings.

The majority of people do not seek confrontation, whether orally or in writing, and may indeed be concerned or frightened of doing so. Most people do not have the resources to bring legal proceedings. Unless absolutely necessary, the Law of Property should not require confrontation to enable people to retain and defend what is theirs. The erection and maintenance of an appropriate sign was a peaceful and inexpensive means of making clear that property is private and not to be used by others. People who chose to ignore such signs should not be able to obtain legal rights over land in that way.

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

Previous diversity of occupation not essential to rights claimed

The case below has had much interest in the national press as the Claimant Mr Wood MBE was a well known soldier who had spent well over £3m on a new equestrian centre which relied heavily on a claimed “right of way” across a neighbour’s. The neighbour said the horses affected his game bird breeding.

In the Court of Appeal case of Wood & Anor v Waddington [2015] the Claimants, Mr and Mrs Wood, said that they had rights of way over land owned by the Defendant, Mr Waddington.

The Woods’ and Mr Waddington’s property had been owned by a Mr Crooks prior to 1998.

Mr and Mrs Wood said:

1. that the rights claimed were expressly granted to their predecessors in title, Mr and Mrs Sharman by clause 12.3.3 of the transfer from Mr Crooks to Mr and Mrs Sharman. This said

“… the Property is sold subject to and with the benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the Property…”.

Corresponding rights had been reserved out of the transfer to Mr Waddington by clause 12.5.3 of that transfer.

However at first instance the High Court had concluded that for the general words in those clauses, a right of way was not a liberty, privilege or advantage “of a continuous nature“. It gave those words their established conveyancing meaning not intending to deal with rights of way at all but instead things like pipes wires and drains.

2. Mr and Mrs Wood said the rights claimed were advantages enjoyed with the land transferred by Mr Crooks to the Sharmans, their predecessors in title, and became easements under section 62 of the Law of Property Act 1925.

The Claimants said that the rights which they claimed were, prior to the transfer to Mr and Mrs Sharman, “enjoyed with” the land so transferred under section 62.

However at first instance the High Court said section 62’s use of the word “with” suggested that before the conveyance, there must have been a relationship between the land to be conveyed and the land to be retained so that it could properly be said that the relevant advantage had been enjoyed with the land to be conveyed.

The leading case Long v Gowlett [1923] had said that there must be some diversity of ownership or occupation of the two parcels of land sufficient to attribute the acts relied on “not to mere occupying ownership, but instead to some advantage or privilege (however far short of a legal right) attaching to the owner or occupier of Whiteacre as such and de facto exercised over Blackacre.”

However the Court of Appeal said that:

1. there is no absolute bar to section 62 operating where land has been in common ownership and occupation. Diversity of occupation assist us to differentiate between cases where a landowner is just using their land as they wish, and cases where a use is in the nature of an easement or quasi¬easement enjoyed for the benefit of a particular part of the land. However, diversity of occupation is not essential and section 62 may be effective to transfer easements where the enjoyment of the rights claimed was continuous and apparent when the parcel of land was sold off.

2. The word “continuous” had become “all but superfluous” when the words “continuous and apparent” were juxtaposed with claims under the rule in Wheeldon v Burrows [1879] and under section 62.

Additionally under section 62 there was no requirement to show that the easement claimed was necessary for the reasonable enjoyment of the land (as is required under Wheeldon v Burrows).

What mattered was the extent to which there were visible signs of a track or road, and in this case there were adequate signs on the ground that the claimed routes had been continuous and apparent.

Section 62 only applies if the rights claimed are enjoyed with the land. So they must have been used for a reasonable period before the parcel of land was sold off.

The Court of Appeal then considered when, and how often, the tracks were used and said that the tracks being used approximately once per month met the requirements of section 62.

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

Party Walls Act restricts works a neighbouring owner can require

In the High Court case of Bridgland v Earlsmead Estates Ltd [2015] the claimant claimed breach of statutory duty in that:

1. Their neighbouring building owner failed to serve on them a notice under section 3 of the Party Wall Act 1996 (“the 1996 Act”), thereby depriving the claimant of the opportunity to avail herself of the counter-notice procedures in section 4 of the 1996 Act. Had the claimant been allowed this opportunity she would have been able to require the works to be performed in such a manner as to prevent the issues of damp arising from the demolition of the building owner’s gable.

2. In breach of section 7 (1) of the 1996 Act the neighbour had failed to carry out their demolition work in such a way as to avoid unnecessary inconvenience being caused to the claimant.

The court found that the claimant had misunderstand the nature and purpose of a counter notice served under section 4. Such “other work” as may be the subject matter of a counter notice is different from the work which the building owner proposes, and a counter notice has nothing to do with the manner in which the building owner’s proposed work is to be carried out.

The purpose of the notice was not to enable an adjoining owner to require that the building owner’s proposed work be carried out in a particular manner, but rather to enable an adjoining owner to require that additional work be carried out by the building owner, for the benefit of the adjoining owner, at the same time as the builder’s owner carried out his own proposed work.

The expense of those additional works would have to be borne by the adjoining owner requesting the additional works, and not by the building owner: section 11(9) of the 1996 Act.

Also a counter notice could only relate to such other work to be carried out on the “party fence wall or party structure” as “may reasonably be required for the convenience of the adjoining owner” (section 4 (1) (a) of the 1996 Act). So such additional works can only be required to be carried out on the party wall itself, and not on the building owner’s land. It does not extend to any further work which the adjoining owner might wish to carry out, or have carried out on his own land either.

A counter notice therefore cannot, and does not, relate to such further work and a counter notice is not a medium for objection to the manner in which the building owner proposes to carry out his works.

So the claimant’s case had been incorrectly premised on the assumption that, had they served a counter notice, then they “… would have been able to require the works to be performed in such a way as to prevent the issues of damp arising”. What specific requirements could the claimants have made in their counter notice? Had there been a disagreement in relation to their requirements, could a surveyor appointed under the 1996 Act have made an award by which he directed the defendant to meet those requirements, and to carry out the works in the manner required by the claimants?” Had a section 4 counter-notice been served requiring French drains to be dug on the claimant’s property, that would have been outside the provisions of the Act.

On the second point the 1996 Act does not contain provisions enforcing performance of the obligation in section 7 (1) but the fact that it contains a specific mechanism or procedure for the resolution of disputes in relation to “any matter” connected with “any work” to which the 1996 Act relates strongly indicated that a breach of such obligation is only actionable through such mechanism or procedure.

In any event a breach of statutory duty is not actionable of itself, but only upon the occurrence of resultant damage. As regards section 3, a failure to serve a party structure notice would be a breach of the relevant statutory duty but it would not constitute the damage itself. Whether in relation to breach of section 3 or section 7, damage would be the physical damage caused by damp penetration to the flank wall of the claimant’s property. This was only likely to have occurred some time after demolition occurred but this could be assessed if the claimants sued the building owner for withdrawing any implied easements of protection their wall had acquired.

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

Industrial purposes in pylon compensation agreement included warehousing

Public utilities have compulsory purchase powers and can insist on acquiring rights they require, but usually prefer to proceed by negotiation and agreement.

On occasion the deed of easement may contain a clause to ensure that if a development opportunity emerges in future, the Grantor or his successors will be entitled to compensation for any reduction in value due to the existence of the pipes or wires.

There may be advantages to both parties in this:

– the Grantor won’t have to accept a speculative assessment as to the reduction in the value of his land at some unknown point in the future for a use which can only be guessed at and could easily be underestimated; and,

– at the time of the easement being granted, the Utility would not be required to make a payment to compensate for a loss which may never happen.

In the Upper Tribunal (Lands Chamber) case of G Park Skelmersdale Ltd v Electricity North West Ltd [2014] G Park Skelmersdale Limited (“the claimant”) sought compensation from Electricity North West Limited (“the respondent”), under a deed of grant (“Deed”) dated 12 May 1967 made between the Central Electricity Generating Board (“CEGB”) and Mr William Holland, (“the Grantor”) who owned Spa Farm, Lathom, Skelmersdale, Lancashire (“the Property”) prior to the claimant.

This said that if the Grantor obtained planning permission for the Property “for residential or industrial purposes” the Grantor could give CEGB 6 months’ notice to pay the Grantor compensation for any diminution in the value of the areas benefited by the planning permission due to the presence of the electric lines above the Property.

The writer was brought up in Lathom within sight of the pylons and remembers their first appearance on the skyline. Indeed the House depicted above is nearby Lathom House, designed by Giocomo Leoni in 1714 for East India Company Director Sir Thomas Bootle, and mainly demolished in 1925.

On 26 March 2008 the claimant gave the respondent notice of planning permission for warehousing and distribution and claimed compensation under clause 3(1) of the Easement.

The parties agreed to postpone the 6 month deadline to pay to allow for consideration of the feasibility of diverting the overhead line to allow the development to proceed but that did not happen.

The two preliminary issues the Tribunal had to decide were:

1. Whether the references to “development … for … industrial purposes” and “such purposes” in clause 3(1) of the Easement included development for primary storage/distribution uses under Class B8 of the Use Classes Order 1987; and

2. Whether the appropriate valuation date for the assessing compensation was the date of:

2.1 the grant of outline planning permission (20 December 2001); or

2.2 the variation of that planning permission (9 September 2004), or

2.3 the approval of reserved matters (15 May 2007), or

2.4 the notice of claim (26 March 2008).

The respondent said clause 3(1) was to restrict compensation to cases where the development prevented was a residential or industrial use. However:

– the Tribunal could think of no reason why CEGB would reasonably expect to pay compensation if the presence of its overhead lines restricted one valuable use of the land, but NOT if another use was restricted; nor

– could it think why the ability to develop the land for certain uses should be restricted without the Grantor having any compensation for the reduction in value due his inability to pursue those uses. Such an uncommercial arrangement was not likely to have been the parties’ intention.

the Tribunal found:

– on the first preliminary issue that the expression “industrial purposes” was not to be narrowly construed, and was wide enough to include the development of the Property for storage and distribution uses within Class B8.

Against the context of the Property’s then agricultural use, the use of the composite expression “residential or industrial purposes” suggested that what was intended “was a broad classification of alternative uses “representing the principal classes of profitable development”, rather than a narrow focus on manufacturing industry.”

Also development for “industrial purposes” had a wider connotation than “development for industry”, and would include ancillary uses. Land used for the storage of raw materials or components for use in manufacturing, or of manufactured goods awaiting distribution to customers, was used for “industrial purposes”.

On the second issue of the valuation date, the relevant planning permission was the outline planning permission obtained in 2001, renewed and then supplemented by the reserved matters approval obtained on appeal on 15 May 2007.

The parties must have intended that the relevant permission would include the details necessary to enable the property to be developed. The test was at what date did the development get the planning permission that could not be implemented because of the electric lines over the property? That date was 15 May 2007 when the final reserved matters approval was obtained. It was only at that date that development could have proceeded.

So the valuation date under clause 3(1) was 15 May 2007.

This blog has been posted out of general interest. It does not remove 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.

Initial toleration of fence placement did not abandon right of way

The courts do not lightly accept that rights have been abandoned through mere disuse. There has to be pretty unequivocal evidence that they have been intentionally and permanently abandoned by the owner and any tenants of the land benefitting from them.

In the Court of Appeal case of Higson & Anor v Guenault & Anor [2014] the appellants, owned a house and garden at Lancaster (“the Higsons’ property”).

The respondents were representative members of the Bowerham Lawn Tennis Club (“the Club”). The Club was accessed by a narrow track which ran alongside the Higsons’ property (“the lane”).

The case centred on a larch lap fence mounted on concrete posts which the Higsons erected in 2004, (“the 2004 fence”).

In 2006, the Club wanted to recover the tennis courts. When the Club contracted to have the courts resurfaced, the drivers of the independent contractor lorries were unable to get down the lane to offload the material.

The issue was whether the Club had a right of way up to the hedge on the south side of the lane or whether the right of way was only up to the 2004 fence.

The court concluded that, as at 1997, the physical extent of the right of way which the Club enjoyed was up to the hedge on the south side of the lane.

The appellants claimed that the physical extent of the right of way might have been reduced by virtue of the 2004 fence. The court did not accept that argument. The mere fact that the owner of land benefitting from a right of way does not use the full extent of his right of way over the land burdened by the right of way all the time does not mean that the right of way is abandoned or modified.

It must be proved that the person having the right intends to abandon it. There was no evidence of that.

So in a victory for the Club, the court concluded that the Club’s right of way over the lane on the south side was, and remained, right up to the hedge, and up to the line of the former hedge where it had been cut down, e.g. to provide access points to the Higsons’ property.

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