LEGAL ADVICE TO RESIDENTS ASSOCIATION FOR SLEEPY CLOSE.

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 (the land that benefits), 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 places a burden on the servient tenement (the disadvantaged land). By allowing a neighbor to walk across one’s land, permitting the drainage of water, or by interfering with the passage of light to a neighbour, 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.[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.

Issues arising from the concerns of the Residents Association

1. Whether Bodgit Developer and future residents and owners of the houses and fllats are entitled to pay for the upkeep of Sleepy Close.
2. Whether the right of way can be restricted to curb the disruption of construction traffic during building and vehicle access when the new development is completed.
3. Whether there is a remedy for the infringement of Karmel’s right to light that will emerge once the flats are built.
4. Whether there is a remedy for Edward’s concern that the new buildings will block his view of the river.

Analysis of the issues and possible solutions.

a)Whether Bodgit Developer and the future residents and owners of the houses and flats are entitled to pay for the upkeep of Sleepy Close.

The land purchased by Bodgit Developer is currently accessed by a narrow dirt path just wide enough for a small car, which leads to the land from the end of Sleepy Close.  This is the only way to access the land since it is enclosed by the houses on one side of Sleepy Close, a river and another private land. Due to this, Bodgit Developer can acquire an implied easement of right of way by necessity.

In the case of Pryce v McGuinness[4], the court held that an easement can arise when a particular right is necessary. In the case of Wong v Beaumont[5], the court held that an easement of ventilation arose by necessity because new land owner could not build and use the restaurant that he intended to without constructing a ventilation shaft.

The road connecting the 10 houses in Sleepy Close estate is ‘unadopted’ meaning that is privately owned and maintained by the Association, with each House paying a monthly fee. According to the Highways Act 1980, an unadopted road is a road that is not maintained using the public expenses. Residents are responsible for management of unadopted roads and can deny the access of third parties or set rules applicable. Due to this, Bodgit Developer and future owners are entitled to pay for the upkeep of Sleepy Close.

1. b) Whether the right of way can be restricted to curb 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.

An easement can be restricted when the use of the land changes or becomes excessive than the intended use[6]. In the Jelbert v Davis[7], the right of way was restricted when the owner of the dominant land changed the use of the land from farming to creating a caravan park. The road at the end of Sleepy Close was used by 10 houses only. Once the flats and houses that will be built by Bodgit Developer are completed and during the construction,  the traffic will increase. The best remedy for this is to restrict the right of way.

1. c) Whether there is a remedy for the infringement of Karmel’s right to light that will emerge once the flats are built.

Freehold owners of buildings are entitled to receiving a reasonable level of natural light through the windows of their buildings.[8] 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. 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.  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. The different case laws available like Palmer v Fletcher[9] and the recent Myers v. Catterson[10] depict this.

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.[11] 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.

1. d) Whether there is a remedy for Edward’s concern that the new buildings will block his view of the river.

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.[12] However, there have been a couple of high profile court cases that have been exceptional.

The right to view has however been successfully challenged in the court of appeal in the case of Dennis v Davies[13]. 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. 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.[14] 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 preventing Bodgit Developer from blocking his view.

Conclusion

After going through different articles and analyzing various decided cases, my advice to Resident’s Association regarding all their concerns and those of Karmel and Edward  is that they should organize a meeting between them and Bodgit Developers. During the meeting, the following matters should be addressed:

1. The traffic permitted to use the right of way.

One of the most appropriate things to do is for the resident’s association 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.

1. Whether there are any height, width, or weight restrictions on the traffic that uses the right of way.
2. The fees for the upkeep of Sleepy Close. Bodgit Developer should be informed 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.
3. Karmel’s right to light and Edward’s right of view. The Residents Association should ask about the plan for the construction of houses and flats. This is important so that they can identify early enough whether Karmel’s right to light will be infringed. To prevent the infringement, Residents Association can request Bodgit Developer to change their design for the construction.
4. The route for 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 a new route. This could be done by negotiating with the owners of the dominant tenement 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.

During the negotiations,  Bodgit Developer may:

1. Offer Karmel a significant amount as settlement for the foreseen infringement of his right to light
2. Give the Residents Association a light obstruction notice. 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.

If the Residents Association and Bodgit are unable to agree or to find possible solutions and Bodgit decides to push through will the construction, the Residents Association can

1. seek for an injunction in court to restrain the construction planned by Bodgit Developer
2. an order compelling Bodgit Developer to bring down a development
3. damages to compensate for the infringement with such rights to light or way