Easement Problem Question

Front 1

First paragraph

Back 1

It can be assumed from the facts provided that Krug was not a part of any of the arrangements made between Perry and Cliquot. The rights created then will only affect him now if they are proprietary rights that benefit or burden Moet House

Front 2

Second Paragraph

Back 2

The three rights concerned are all rights to do something on someone else’s land which is a characteristic feature of an easement. Cliquot would benefit from use of the garage and the garden if these rights satisfy the requirements for an easement. This is the same for the use of the field for easier access to the local village, however there is not mention of Krug or Cliquot wanting to use the field as a shortcut. If any of these rights are not easements they are most likely permissive licences. Such licences are not interests in land, but arrangements between the parties. As such, they might not have survived the transfer of ownership.

Front 3

Third paragraph

Back 3

It is generally required that a right must satisfy the four requirements adopted by Lord Evershed in Re Ellenborough Park if it is to be an easement. The requirements are as follows:
• There must be a dominant and servient tenement.
• The right must accommodate the dominant tenement.
• The dominant and servient tenements must be owned or occupied by different people.
• The right must be capable of being the subject matter of a grant.

Front 4

Fourth paragraph

Back 4

The garden of Moet House belonging to Krug (formerly Perry) is the servient tenement and the first floor of Moet House occupied by Cliquot as a tenant is the dominant tenement.

Front 5

Fifth paragraph

Back 5

Following the principles established in Re Ellenborough Park to assess whether the right is capable of being an easement, there is an issue in relation to the second requirement as use of the garden for Cliquot to exercise her dog, as it seems to be more of a personal advantage as opposed to being reasonably necessary for the enjoyment of the land.

Front 6

Sixth paragraph

Back 6

Re Webb’s Lease requires an easement to confer a permanent and real benefit and the Law Commission stated it must be reasonably necessary for the better enjoyment of that land. There are other means for Cliquot to exercise her dog.

Front 7

Seventh paragraph

Back 7

The case of Re Ellenborough Park in itself showed that the use of a ‘leisure garden’ was capable of being an easement. This may aid Cliquot in the argument of the use of the garden being reasonably necessary for enjoyment.

Front 8

Eighth paragraph

Back 8

Wheeldon v Burrows may be used to create a legal or an equitable easement if the right was continuous or if it is necessary for the reasonable enjoyment of the land. It can be assumed that before the change in ownership of Moet House, that the use of the garden was continuous and apparent.

Front 9

Ninth paragraph

Back 9

If the use of the garden however should deprive Krug of reasonable enjoyment of the land then the right will be held to be a substantial interference and cannot be considered to be an easement (the ouster principle). The case of Copeland (use of narrow strip of land ousted servient owner) demonstrated substantial interference with the servient owner’s use of the land. Although, Lord Scott in Moncrieff noted conflicting decisions and dicta regarding the ouster principle which suggests that whether or not the right would substantially interfere with the servient owner is debatable, as can be seen from the case of Dowty Boulton where the use of an airfield did not oust the servient owner.

Front 10

Tenth paragraph

Back 10

It was not specified whether the right granted by Perry was written in a deed or not, but if it was then it would be sufficient to create a legal easement (however it would also need to be registered if Moet House is registered (Land Registration Act s.27 (2) (d)).

Front 11

Eleventh paragraph

Back 11

If it was not specified in deed form then it may be capable of being an equitable easement (this would only be binding if it were protected by registration as a land charge or by entry on the Title Register).

Front 12

Twelfth paragraph

Back 12

This is all dependent on whether the right is capable of being an easement, so if it can be argued that the right is necessary for reasonable enjoyment and if it doesn’t oust Krug then it will be capable of being an easement.

Front 13

Thirteenth paragraph

Back 13

Moet House belonging to Krug is the dominant tenement and The Paddock belonging to Perry is the dominant tenement.

Front 14

Fourteenth paragraph

Back 14

The principles in Re Ellenborough Park have all been satisfied, and there is no issue of the right being capable of being the subject-matter of a grant as it has been established that a right of way is capable of being an easement. Although, in Celsteel a right of way interrupted with the servient owner’s quiet enjoyment and was held to be a substantial interference and therefore could not be allowed. The purpose of using the field therefore needs to be considered. If the field would just be used as a shortcut to get to the village for the convenience of not having to take the three mile detour then this may not be a substantial interference, however this is actually if Cliquot or Krug would like to use the field for this purpose as there is not mention of it in the facts provided.

Front 15

Fifteenth paragraph

Back 15

It might be possible for Cliquot and Krug to have acquired an unlimited easement by s.62 of the LPA 1925 if they had ever had a licence from Perry to use the short cut to get to the village. More information will be required to assess whether or not this is so.

Front 16

Sixteenth paragraph

Back 16

For the easement to be legal it must be for a term equivalent to one of the two legal estates, either indefinite or for a term certain (s.1 (2) (a) of the LPA 1925). However, again this is dependent on whether or not there had previously been a right allowed.

Front 17

Seventeenth paragraph

Back 17

The Paddock belonging to Perry is the servient tenement and the first floor of Moet House of which Cliquot is a tenant is the dominant tenement.

Front 18

Eighteenth paragraph

Back 18

There is an issue with the requirement in Re Ellenborough Park that the right must be capable of being the subject-matter of a grant. The important of Cliquot using Perry’s garage to park her car needs to be assessed. Is there anywhere else she can park? Also, further information regarding the frequency of the parking is needed for the purposes of the ouster principle.

Front 19

Nineteenth paragraph

Back 19

Wright v Macadam holds that storing goods is capable of being an easement, however the right to park a car is more uncertain as the decision of Upjohn J in Copeland determining there can be no easement to park a car has often been relied on. The case of Bachelor v Marlow highlights the issues with this in that is must not preclude the reasonable use of the servient land by its owner (ouster principle). However, the right to park a single car on a piece of land large enough to park several cars may be capable of being an easement (Hair v Gillman). This was agreed with by Lord Neuberger in Moncrieff. Therefore, the size of the garage would need to be known.

Front 20

Twentieth Paragraph

Back 20

It seems if the right is not capable of being an easement, then it will be very difficult for Cliquot to retain this right as alternative methods involve the right being used for more than 20 years (prescription) or for there to be joint intention (implied reservation). However, using the ruling in Wheeldon v Burrows the right may be capable of becoming an implied grant if it can be shown that the right was continuous and apparent (parking a car is likely to meet this requirement), necessary for the reasonable enjoyment of the property (as mentioned previously, the importance needs to be ascertained) and if it has been enjoyed up until the time Perry sold Moet House.