QUESTION 6

In 2010, Dora, a teacher, who held the registered freehold title to Brownstone Abbey (which contained a cottage, a barn and some sheds), turned the disused barn on her land into a nursery school. In April 2019, when Dora retired, she granted Noah a five-year lease of the nursery school. After Noah moved in, Dora continued to use an alleyway at the side of the nursery school to reach the train station. Noah had made no objections to her using this path. In September 2019, Noah purchased new games equipment. He then realised that the nursery did not have enough space to store it. He spoke to Dora who let him put the equipment in one of the sheds. Dora gave Noah a key so that he could get access to the shed whenever he needed. A year later, Dora allowed Noah to run underground fibre optic cables from the main highway across Brownstone Abbey so that the nursery's internet connection could be upgraded. She also gave Noah permission for the children attending the nursery to use the playground in a paddock in the Abbey. Dora's nursery children had played there when she was running the school. In April 2024, Dora sold Noah the registered freehold title of the nursery. A week ago, Dora told Noah that she was thinking of selling the registered freehold title to the remainder of Brownstone Abbey to Ron, a property developer. Noah wants to know if he will be able to continue to use the shed, the playground and the optic fibre cables if the sale to Ron goes ahead. He also wants to know if Ron will have the right to use the alleyway belonging to the nursery to gain access to the train station. Advise Noah

Based on the provided question, the author discerns that Dora ("D") transformed a disused barn on her property, Brownstone Abbey, into a nursery school and subsequently leased it to Noah ("N") for five years. Throughout their agreement, Dora and Noah exchanged various permissions, including a right of way, storage rights, permission for underground cables, and access to the playground. The central query now revolves around whether these granted rights will persist if Dora sells the freehold title of Brownstone Abbey to Ron ("R"). Specifically, Noah seeks clarification on his entitlement to continue using the shed, the playground, and the optic fibre cables in the event of the sale to Ron. Furthermore, Noah is concerned about Ron's potential claim to the alleyway, which Dora allowed Noah to use for access to the train station. To address Noah's concerns, the author must ascertain the legal nature of the rights granted by Dora to Noah, determining whether they qualify as easements or licenses. The crux of the author’s analysis lies in establishing the capability of these rights to meet the criteria for easement status, which would afford them protection against interference upon transfer of the property to Ron.

(DT) and the servient tenement (ST). The DT represents the land and its owner who benefits from the easement, while the ST signifies the burdened land and its owner who must tolerate the easement's use without obstruction. In the specific scenario of the right of way, Brownstone Abbey would be recognized as the DT, as it enjoys the privileged access to the alleyway that traverses the nursery property (ST). Here, Brownstone Abbey stands to gain from the easement, while the nursery endures the presence of the alleyway on its land.

With regards to the right of storage, right to run underground fibre optic cables and the right to use playground, the DT will be the nursery and the ST will be Brownstone Abbey because N enjoys and has access to these rights on D’s property. Next, there should be two separate owners who are proximate to each other as exemplified in Pugh V Savage. It is clear from the facts that D and N are two separate owners of lands which are proximate and adjacent to each other. The third condition to meet is that there should be proof that the right benefited the DT.

The nature of the benefit bestowed by an easement can vary. In some cases, it offers a general advantage, enhancing the value, usability, and overall enjoyment of the land. This can be seen in situations where an easement simply improves the property's functionality. Alternatively, the benefit might be specifically commercial, directly impacting a business operating on the land. The case of Moody V Steggles exemplifies this concept. Ultimately, easements can offer recreational benefits, but these advantages are legally recognized only when there is clear definition of both the user and the land they benefit, known as the recipient. The Re Ellenborough Park case serves as a precedent for this specific type of easement.

One final requirement must be satisfied to fulfill the Re Ellenborough Park criteria. First, there must be a capable grantor (the party granting the easement) and a capable grantee (the party receiving the easement). The subject matter of the easement, which refers to the specific rights granted, needs to be definite and unambiguous. Fortunately, the rights in this case are clearly outlined and leave no room for misinterpretation. By fulfilling these remaining conditions, we can confidently conclude that all the necessary elements for a valid easement, as established in the Re Ellenborough Park case, have been met.

according to the principles established in the Copeland case. This concern hinges on the "reasonable use test" introduced in Batchelor v Marlow. This test essentially determines whether an easement is valid by evaluating if it significantly hinders the servient tenement owner's reasonable use of their land. In essence, R might claim that the storage easement disrupts the nursery's ability to utilize its own space in a reasonable manner.

However later in the case of Moncrieff V Jamieson they introduced the "control test" where if the right takes away occupational control of the owners land, it will not be an easement. Overtime, it was seen that the courts applied the reasonable use test more often even though it came before the control test which indicates that the test in Batchel or is the preferred one. Assuming that the game equipment does not occupy too much space in the shed, it will not interfere and ruin the reasonable use of the land hence per Batchel or, this argument will fail, and the easement will remain valid. The next aspect is to determine whether the easement is express or implied. Express creation means very specifically that it was created by a contract or a deed and must satisfy certain conditions set out. If a right is not expressly granted or reserved, it can be implied by the courts where in a land sold and land retained scenario, we can imply a grant or reservation. In this case, there is no contract or deed, therefore if R purchases the property and there is a disagreement between the parties they will have to go to court and get the easements implied in the lease documents.

However, a potential complication arises if we consider the future ownership of Brownstone Abbey. Currently, D owns the nursery (the dominant tenement) and enjoys the benefits of the easements. But if the Abbey is sold to R, the dynamic would shift. Brownstone Abbey would then become the "land retained" – the property that benefits from the easements – while the nursery would become the "land sold," burdened by the easements granted to the new owner of the nursery. Therefore, to imply an easement through prior use, a crucial step involves classifying the claimed rights. Are they grants, which would favor the land being sold (the nursery) – these would be classified as grants. Conversely, the right to store items on the nursery property (potentially) benefits the land retained (Brownstone Abbey if sold to R) would be considered a reservation. This distinction is significant because it determines who holds the dominant tenement and who bears the burden of the easement.

In this scenario, distinguishing between grants and reservations becomes crucial for implying easements based on prior use. The right of access to storage, the playground, and the fibre optic cables all favour the land being sold (the nursery) – these would be classified as grants. Conversely, the right to store items on the nursery property (potentially) benefits the land retained (Brownstone Abbey if sold to R) would be considered a reservation. This distinction is significant because grants can be implied through various legal doctrines like necessity, common intention, the rule in Wheeldon v Burrows, or Section 62 of the Law of Property Act 1925. However, reservations are generally limited to implication by necessity or common intention.

However, none of the rights can be implied under necessity as the law of necessity is extremely strict and narrow. This has been stated by the courts in Nickerson v Barraclough, Manjang v Drammeh, and Re Dodds where it had to be proven that if the rights were not given then the land would become completely useless. In this case, the rights would have to be implied by necessity or common intention, which is very unlikely.

Implying the rights based on the idea of "common intention." This means figuring out what D (who leased the house) and N (who ran the nursery) originally intended when they made the agreement. In this case, it seems clear that D wanted a place to live, and N wanted to run a nursery.

However, the question is whether these rights (playground, storage, fibre optic cable, and right of way) were essential for achieving those goals. Looking closer, it seems the nursery could likely function without the playground, storage, and upgraded internet (fibre optic cable). Similarly, D could live in the house without needing access to the alleyway and orchard.

Since these rights don't appear crucial for fulfilling the original intentions, they wouldn't be implied under the "common intention" principle. With this route closed off, and considering the previous discussion about necessity, there might be grounds to revoke the right of way granted to D.

However, with regards to the right of storage, playground and optic cable we can rely on the rules under Wheeldon v Burrow and Section 62 of the Law of Property Act 1925. To prove under Wheeldon v Burrows, four points must be met. For a right to become a valid easement through prior use, it must first qualify as a "quasi-easement." This means the right existed before the land was divided, and the previous owner enjoyed the same benefit on their entire property. In this case, the playground clearly fits this definition. D's own children used it freely throughout the year (continuous use), and its presence wouldn't have gone unnoticed (apparent use) by anyone considering buying the nursery property.

However, there's an argument to be made that the playground easement might not meet the "reasonable necessity" test. While the playground existed before the land division, it could be seen as not significantly increasing the usability or enjoyment of the nursery property. After all, running a daycare with or without the playground might not be a major difference in terms of functionality. Additionally, it's worth noting that D themselves wasn't using the playground at the time the lease was signed, which could further weaken the claim.

Despite potential issues with necessity, we can explore Section 62 of the Law of Property Act 1925. This section allows certain rights granted with permission to become easements if specific conditions are met. In this case, all the rights seem to have been enjoyed with D's informal consent. However, a key factor is the change in ownership. Initially, the nursery was leased, then converted to a fee simple ownership. Brownstone Abbey itself will soon be sold to R. Since there were two significant ownership changes, we need to consider a concept called "prior diversity of occupation" (PDO).

PDO essentially asks if the land had distinct uses before the permission was granted. In this situation, the nursery was clearly leased (different use) before D gave informal permission for the rights. This fulfils the PDO requirement.

1916 WORDS RAW.