The Basic Principle of Easement

Introduction

In English land law, certain limited rights that one has over someone else’s land or to use such land for a specific purpose are referred to as easements.[1] Basically, an easement enables the dominant tenement; who is the owner of the benefited land, to use an easement: for instance walking across the land of one’s neighbor, using a drainage channel, or receiving light. On the other hand, while an easement is seen to confer a benefit on the dominant tenement, it is seen to place a burden on the servient tenement; the owner of the burdened land. By allowing a neighbor to walk across one’s land, permitting the drainage of water, or by not interfering with the passage of light to a neighbor, all these easements places a burden on the servient tenement. Thus, once an easement has been created, it either creates a benefit or a burden on the land itself. An easement is therefore not personal to its initial creators rather it is a proprietary interest in land such that its benefit and its burden passes on to the dominant tenement and the servient tenement respectively upon transfer of the said land.

Generally, an easement is a private right although there are also similar public rights that are created pursuant to legislation.[2] Some of the most common easements include; right of way, right to light, right to park, right to the passage of air, right to the passage of services among others. Although an easement is in actual fact a right over a neighbor’s land, an easement must meet the common law’s definition as laid down in the judgment of MR Evershed in Re Ellenborough Park (1956).[3] In this case, Danckwerts J spelled out four essential characteristics of an easement as follows: (a). There must exist a dominant as well as a servient tenement; (b). The separation of the servient and the dominant owners (they must be different people) (c). The claimed easement must accommodate the dominant tenement, that is, it must confer a benefit on the dominant landowner (d). The right claimed must be capable of forming the subject-matter of a grant (the alleged easement must be capable of being conveyed expressly by deed). If the claimed right can satisfy the above characteristics, it is capable of qualifying as an easement.

In the matter at hand, that is, in the case of Resident’s Association for Sleepy close, one of the most significant issues in question is whether Bodgit Developer who are planning to build a number of Houses and Flats are entitled to use Sleepy Close as an easement. According to the Law of Property Act (LPA) 1925[4], an easement will only qualify as a legal interest if it is held as an adjunct to a fee simple absolute in possession. According to the Land Registration Act (LRA) 2002, once a person purchases a piece of land, the benefit of an easement which is part of the dominant tenement passes to them automatically regardless of whether the easement is legal or equitable. The easement is automatic as a result of a conveyancing deal where the creation of an easement is express thus ensuring that the purchaser of the benefited land is well aware of the easements that are in existence for the benefit of the land they are about to purchase.

Albert at Number 8 has been a beneficiary of the road connecting Sleepy Close estate’s 10 houses thus by selling some land to Bodgit Developer; he automatically transfers the legal easement of accessing the road connecting his land from the end of Sleepy Close. Even though this legal easement was not registered against the title of the servient land, that is Albert’s land, before the LRA 2002 came into force on 13th October 2013, it however qualifies as an overriding easement according to the LRA 1925. For this reason, even though the easement of the road connecting the Sleepy close estate was not initially registered on Albert’s title at the time when the estate was built in 1985, this easement continues to qualify as an overriding interest under the LRA 2002 thus binding the servient land automatically. By Albert selling part of his land to Bodgit Developer, the land that remains in Albert’s possession becomes the servient tenement while the piece that he sold to Bodgit Developer becomes the dominant tenement. Albert thus grants an express easement over his own land along with the dominant piece.

The Residents concern about the disruption of construction, traffic during building, and vehicle access when the new development is completed. 

Now that we have established that Bodgit Developer is entitled to the road connecting their land from Sleepy close, their actions might cause a couple of problems to the residents of Sleepy close estate. Among the most likely problems include disruption of construction, traffic during construction, vehicle access when the new development is completed as well as a dramatic increase in the traffic using the right of way across their estate. One of the most appropriate things to do is for the resident’s association to compel Albert to formulate a deed of grant with Bodgit Developer which will state the things that the dominant tenement, Bodgit Developer should know. Some of the most important points should include the kind of traffic permitted to use the right of way; whether it includes motorcycles, trucks or it is restricted to motor vehicles and passage on foot. Another important point would be whether there are any height, width, or weight restrictions on the traffic that uses the right of way. Another important point would be informing Bodgit Developer that there is a certain fee that every house pays at the end of every month which caters to the maintenance of the right of way.

Bodgit Developer’s actions of building a number of houses and flats constitute their right to develop their land. However, their actions are likely to conflict with those of the neighbors’ overriding interest; that is the right of way. The most appropriate remedy would be to redefine the right of way along anew route. This could be done by negotiating with the owners of the dominant tenements and drawing up a Deed of Variation before a solicitor. This option might fail and the Resident’s Association being aggrieved may sue Bodgit Developer pleading excessive use of the road if there is a high level of use than permitted. However, such cases are almost certainly likely to fail since as much as all the other limits on the usage of the right of way may still be in place; there is normally no limit on the number of times in a given period of time that the dominant tenement should use the right of way.

Karmel at Number 6 is worried that the new flats will block the light to his kitchen

Freehold owners of buildings are entitled to receiving a reasonable level of natural light through the windows of their buildings.[5] This legal right is in the form of an easement. Particularly in residential properties, natural light is regarded as a desirable quality that is most likely to enhance the value of a property. As much as the right to light does not necessarily amount to uninterrupted views or a right to direct sunlight, rights to light can be protected through legal action. Some of the legal actions that can protect one’s right to light include injunctions restraining developments that are likely to infringe one’s right to light as well as an order compelling a neighbor to bring down a completed development. In some instances, a court may award damages to compensate for the infringement with such rights to light.

Some of the laid down ways of acquiring a right to light that are available for Karmel at Number 6 include through common law cases precedents. There are a number of common law cases that have been ruled on the right of light. Karmel at Number 6 can bring a matter before court quoting some of the landmark cases such as Palmer v. Fletcher, r Livinq[6] and the recent Myers v. Catterson[7]. One of the other most appropriate ways that Karmel at Number 6 can acquire the express right to light is by the enjoyment of the right to light over time. According to the Prescription Act 1832, one is entitled to an express grant of right to light having enjoyed the same continuously for 20 years. In this case, Karmel has enjoyed the right to light continuously since 1985 thus he is likely to get the express grant of right to light as prescribed by the Prescription Act 1832.

One of the most complicated areas is the right to light. While the statute that governs this right (Prescription Act 1832) seems old and outdated, the Law Commission has since proposed significant changes.[8] However, as we wait for the introduction of these recommendations there are some measures that can be incorporated by parties to a right to light dispute to amicably settle such disputes. One of the most recommended is negotiation. Developers have in most cases deployed negotiation as one of the modes of achieving early settlement as well as releasing any future claims that are likely to come up. Although in some instances it might end up involving paying more than the claim would have been worth, it eliminates risks significantly. In this case, Bodgit Developer can approach Karmel and offer him a significant amount as settlement for infringing his right to light.  Developers have also resulted in light obstruction notices. Light obstruction notices are statutory notices that a developer can serve to a party claiming rights to light under the 20 years continuous enjoyment rule. If the party claiming 20 years continuous enjoyment of the right to light fails to challenge the light obstruction notice for 12 months, the 20 years continuous enjoyment of the right to light is eliminated. One other option that has become popular in recent years is the right to light insurance. This option does not prevent the right to light claim from occurring but it insulates the developer from the long right to light cases that are likely to take a lot of time in court. Bodgit Developer can consider such an insurance policy in this instance.

 

Edward at Number 4 is convinced that the development will block the picturesque view of the river he currently enjoys

There is a reason why most people will pay a fortune for certain views one of them being that it adds value to a property. However, these views are not always guaranteed to last forever as they might are likely to get blocked in the future. Although a lot of court cases have brought the right to a view to the frontage, it has been generally found that the owner of a property cannot stop their neighbors from erecting a property just because the premises will impede their view.[9] However, there have been a couple of high profile court cases that have been exceptional.

One of the most recent cases was that of an owner of a bed and breakfast restaurant located in Ramsgate on the South Coast of KwaZulu-Natal who sought to stop developers of two multi-story apartments that the owner of the restaurant believed would obstruct sea views from his premises. This case was dismissed after 11 years of legal battles. Generally, once you buy or build a house, you have little or no say on what is to be built in front of your premises as long as the prospective neighbor has satisfied all the legal requirements provided. Even though objections may be raised in the future, the mere fact that the proposed building will obstruct your view is not enough reason to stop a construction project.[10] The rationale behind this is that it would infringe on one’s right to their property thus hindering beneficial development.

The right to view has however been successfully challenged in the court of appeal in the case of Dennis v Davies[11]. This case concerned a dispute in regards to a modern development next to the River Thames. The development had been specifically designed and sold on the basis that every property had a view of the river. The property owner of one of the houses beside the river decided to construct an extension that was most likely to obstruct the views of the river from the properties neighboring it. These neighboring properties lost value significantly as a result of the extension and this would provide a precedent for other others to develop properties by the riverside thus blocking the view of other rivers.

All the owners of properties in the development had subscribed to a specific covenant that they would not cause annoyance or nuisance to neighbors. The issue of nuisance was not applicable here since obstruction of a view does not in any way amount to an actionable claim. However, obstruction of a view constituted annoyance thus on that basis the development was stopped.[12] This case is exceptional and one of the factors that the court considered was the fact that the property development was designed and sold on the basis that each premise would benefit from the views of the river. More so, the covenant between the property owners ensured that no owner would cause annoyance to his neighbors.

The general position is that there is no right to a view, however; this case sets a precedent where an exception can apply. In this case, Edward at Number 4 has a chance of blocking Bodgit Developer from blocking his view.

Conclusion

Even though the land may be owned obsolete by one person, it is possible that others are likely to enjoy certain rights over that land. However, an easement should only be used for the purpose, to the extent and in the manner that it is granted. An easement is thus subject to any specific limitations on use such that if a right of way is specified to be accessed only on foot, you should not drive along it. Such limitations are quite easy to determine in expressly granted easements but they can be difficult for an easement that has been created by long use or even an implied easement.

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