Free Law Dissertations - If A Person Has A Plot Of Land And Acquires By Grant, Prescription Or Other
If a person has a plot of land and acquires by grant, prescription or other method a "right" to park on adjacent land, can that be an enforceable easement?
In London and Blenheim Estates Ltd v Ladbrooke Retail Parks Ltd it was recently held at first instance that a right to park can exist as a valid easement but that the grant of a right to nominate additional unspecified land as the dominant tenement of the servient parking land would not create an interest which bound successors to the title to the servient land. A precedent in Precedents for the Conveyancer, vol 2, 19-60, para 9694,5 seeks to circumvent the Ladbrooke case. It sets out the grant of an option for car parking rights over land to be identified later, by the service of an extension notice within the perpetuity period.
Any argument that for the period of the parking the owner is totally excluded and that this amounts to a claim to exercise rights of ownership seems insupportable in view of Miller v Emcer Products Ltd There it was held that a grant of a right to use a lavatory in an office created an easement even though, for the period of use, the servient owner was excluded. Romer LJ said that this was a common feature of many easements, such as rights of way, and did not amount to ouster of the servient owner. The person who claims to have an easement of parking must take care not to make such a large claim that he exceeds the basic characteristics of an easement. In Copeland v Greenhalfa wheelwright claimed as an easement the right to store and repair an unlimited number of vehicles on a strip of his neighbour's land. He was unsuccessful because the claim amounted to a claim to joint user of the land with its owner or even to exclusive possession. No right of such a wide and undefined nature could be the proper subject matter of an easement.
On a "conveyance" of unregistered land, s 62 of the Law of Property Act 1925 can transform a use of neighbouring land that is enjoyed with the permission of the vendor/grantor into a legal easement. Rule 251 of the Land Registration Rules has exactly the same effect as for straightforward transfers of registered land.
The classic situation in which s 62 can apply is where there is an existing landlord and tenant relationship and the landlord grants a new term to the tenant. Here, it is quite common for the tenant to have enjoyed, by informal permission, some use of land close to the demised land which has been retained by the landlord. For instance, in Wright v McAdam (as discussed above) the landlord gave his weekly tenant permission to use a shed in the garden for the storage of coal. Later, the landlord granted a new tenancy to the tenant of slightly larger premises (not including the garden). A dispute subsequently arose about the tenant's continued use of the shed. The court held that the permission to use the shed had, upon the grant of the new tenancy, been transformed into an irrevocable easement.
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Dissertations - Free Law Dissertations
