Easements Essay Question

Front 1

First paragraph

Back 1

It seems the present law does not represent an effective and satisfactory means of dealing with the issue in which a right to park a motor vehicle may arise as an easement.

Front 2

Second paragraph

Back 2

The requirements of an easement were laid out by Lord Evershed in the case of Re Ellenborough Park. There must be a dominant and servient tenement, the right must accommodate the dominant tenement, the easement cannot be over one’s own land and also the right must be capable of forming the subject matter of a grant.

Front 3

Third paragraph

Back 3

Within this essay, there will be discussion of the issue with the fourth requirement, the decisions in the case of Moncrieff v Jamieson, the ouster principle and the views of commentators on the matter of the law at present.

Front 4

Fourth paragraph

Back 4

The issue with the fourth requirement of Lord Evershed’s in Re Ellenborough Park is that it means an easement cannot amount to exclusive use or joint possession. The case of Reily v Booth explains that a right which is permanent and substantial may not be an easement. Therefore, if an easement to park a motor vehicle is permanent and so substantial that it prevents reasonable use of the servient owner to enjoy their land then it cannot be an easement.

Front 5

Fifth paragraph

Back 5

Demonstrations of this can be seen in the cases of Saeed v Plustrade (attempt to make substantial reduction in places available), Celsteel Ltd v Alton House Holdings (interference with right of way) and Metropolitan Railways v Fowler, although the case of Fowler does not deal with the right to park a motor vehicle. This was also discussed by Gareth Sparks in his 2012 article on easements of parking, in which he explained that it’s not lawfully possible if it amounts to a substantial interference.

Front 6

Sixth paragraph

Back 6

If the right is permanent but insubstantial, then it may be capable of becoming an easement. This was discussed in Michael Haley’s 2008 article on easements and the right to park where it was mentioned if the right involves only a passive and insubstantial element of permanent exclusive use then a different approach is taken. This was demonstrated in the case of Moody v Steggles (easement of a signboard affixed to the defendant’s house).

Front 7

Seventh paragraph

Back 7

The test for deciding whether or not there is exclusive or joint possession is known as the ouster principle (the substantial interference test).

Front 8

Eighth paragraph

Back 8

An example of the ouster principle in use can be seen in the case of Copeland, in which the use of a narrow strip of land ousted the servient tenement from reasonable use and enjoyment of the land, therefore the right could not be classified as an easement. It was also noted in the case of Moncrieff v Jamieson, that the judgment of Upjohn J in Copeland has been relied on to support that a right to park cannot be an easement. Another example would be the case of Melville where the use of a cellar door held to oust the owner so that, too, could not be an easement.

Front 9

Ninth paragraph

Back 9

However, the case of Macadam, was decided differently (rights to store goods in a coal shed did not oust the servient owner from the land), even though following Copeland it should have been decided perhaps that it did in fact oust the servient tenement and therefore could not be an easement.

Front 10

Tenth paragraph

Back 10

It seems, that although these cases used a form of the substantial interference test (the ouster principle), that there is no clear cut reasoning to decide what would oust a servient tenement from reasonable use and enjoyment of the land. This may lead to inconsistent judgments which in turn could lead to harsh or unfair results. Lord Scott noted in the case of Moncrieff v Jamieson that there are conflicting decisions and dicta regarding the “ouster principle”.

Front 11

Eleventh paragraph

Back 11

The case of Moncrieff v Jamieson did not concern an easement to park a car, however the Supreme Court attempted to clarify some uncertainty surrounding easements to park a motor vehicle. The case in fact concerned difficult access to a piece of land.

Front 12

Twelfth paragraph

Back 12

The judgments with this case seemed a bit uncertain, especially as some judges (Lord Hope and Lord Mance) were not willing to disclose their opinions on the matter. Lord Neuberger made an interesting point on capacity, as he mentioned that if the servient tenement was large enough to hold several vehicles, then surely the grant of a right to park a single vehicle may be capable of being an easement. Lord Scott also saw no reason why it couldn’t be so, however his reasoning didn’t seem as convincing as his reasoning seemed more based on that the focus shouldn’t be about deprivation of use (which is against previous decided cases such as Melville), and his judgment seemed more of based on opinion.

Front 13

Thirteenth paragraph

Back 13

The significance of this case is that it considers the possibility of the right to park a motor vehicle as an easement and has left it open for future cases to be able to argue this. Whereas before this case, it seems Copeland was the main leading case, in which a right to park a motor vehicle could not be an easement because of the ouster principle.

Front 14

Fourteenth paragraph

Back 14

Gordon Junor in his 2008 article about future problems with rights to park, noted that perhaps when advising future clients in this area of law it might be preferable to regard the decision in Moncrieff as one specific to the peculiar circumstances of that case as opposed to using it as guidance.

Front 15

Fifteenth paragraph

Back 15

David Bartos in his 2006 article about the right to park after Moncrieff was of a similar opinion, as he expressed curiosity as to when Moncrieff would actually be able to be used to grant a right of parking as an easement and suggested that it should be dealt with expressly in a deed.

Front 16

Sixteenth paragraph

Back 16

It seems that there is uncertainty as to whether or not Moncrieff will be able to provide guidance on this issue. It seems to have created more confusion, especially because of the judgment of Lord Scott which was conflicting with decisions in previous cases.

Front 17

Seventeenth paragraph

Back 17

After looking into cases and the views of commentators, it seems there is room for improvement on this issue. At present however, it seems the present law does not represent an effective and satisfactory means of dealing with the issue in which a right to park a motor vehicle may arise as an easement as there seems to be confusion and uncertainty regarding this matter.