Adise on principles of Land Law

In contrast to realty, personalty is considered to be anything other than land such as cars, furniture or even debts.  It is more difficult to recover such things and the owner must usually be satisfied with compensation to the value of the loss. This action is against the dispossessor and is therefore known as an action in personam as it is only enforceable against one person.  

However, the distinction between rights in rem and rights in personam does not end here and it is the significance and importance that they hold in property law which has been the subject of much debate, due to the suggestion that “Rights in personam are seen as purely personal rights which remain outside the realm of property law”. Proprietary rights must be capable of binding third parties and if they fail to do so they are merely personal.  This raises the question of whether personal rights will ever be able to override proprietary rights. According to Lord Wilberforce this is only possible if the right is “definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability”.  Therefore, in order for Horace to prove he has a right to a view he must define it and show that it has permanence or stability.  This proves difficult to establish because to define a view would inevitably restrict anybody from building anywhere in that view.  In addition, whilst property can be said to be permanent, a view cannot due to there being little or no restriction to build beyond the owners land but within their view.  

In conclusion to the situation it would appear that there is no supportive precedent for a right to a view and as Horace would find it almost impossible to define his view as a right, there are no legal remedies to prevent Peregrine from building Pilemhi.

2. In advising Horace, it must be noted that Clarence obviously has an interest in Horaces’ land due to it being the only access to his own land.  The problem is what type of interest is it, is it capable of being a particular interest and how has it been created.  

The interest is most likely to be an easement, which is defined as being a right exercised over one plot of land for the benefit of another.  However, an easement is heavily defined and for the claim to be capable of being an easement it must satisfy the four characteristics listed by Dankwerts J in Re Ellenborough Park (1956). These characteristics are as follows; there must (1) be a dominant and servient tenement, (2) the right must accommodate the dominant tenement, (3) the dominant and servient tenements must be owned by different people and (4) the right must be capable of forming the subject matter of a grant.  In the given situation Horaces’ land is the servient tenement as it suffers the burden, whilst Clarences land is the dominant tenement because it enjoys the benefit and that the two owners satisfy the requirement that the tenements be owned by different people.  However, proving that the right accommodates the dominant tenement is more difficult.  As was shown in the case of Hill v Tupper the right must be of benefit to the dominant land and not just to the owner of it. Whilst in the Hill case it was held that the right “did not confer such an interest in the plaintiff as to give him a right of action against another person”, this conflicts with the judgement in Re Ellenborough which found that the use of a park for recreational purposes could be recognised as an easement and that “the right to the full enjoyment of the park did not fail to qualify as a legal easement for want of the necessary connection between its enjoyment and the premises to which that enjoyment was expressed to belong”. It would seem therefore that as Clarence’s property satisfies the requirement of proximity to Horaces’ land and his enjoyment of the land will be supported by the Re Ellenborough judgement, the right can therefore accommodate the dominant tenement.

Finally, for the right to be capable of forming the subject matter of a grant there must be a capable grantor and grantee and the right claimed must be sufficiently definite. It is uncertain whether Clarences’ claimed right of way across Horaces’ land can be deemed sufficiently definite due to him using several different paths to get to his own land. However, as all the paths lead to the same gate in the boundary fence there is some stability and definition attached to the right of way.  Additionally, it has been stated that “A right to cross land between two specified termini, over every part of the land and not merely between the termini”is held to satisfy the requirements of being capable of being an easement.

As all the requirements of an easement are met by the claimed right of Clarence, it must now be addressed whether an easement has actually been created.

An easement can be created by four different main methods; an express grant, which this situation clearly doesn’t satisfy due to the lack of a deed or expressed act; an implied grant, which relies heavily upon the rule in Wheeldon v Burrows ; a grant evidenced by prescription or by proprietary estoppel.  

The most applicable method in this situation is prescription, which allows for an easement to arise with minimal evidence, based on the right having been enjoyed for a long period of time. There are three main requirements of a prescriptive right. The first is that Clarence must be able to prove the user as of right. This means that the right must be used as if it is an ‘assumed’ right, therefore it cannot be by force, by stealth or by permission. Bertie ‘permitted’ Clarence to cross the land, therefore the easement may not satisfy the prescriptive method as “an easement by prescription will fail if it shown that the right was enjoyed with the permission of the servient owner”  as was shown in the case of Dalton v Angus. However, no such permission has been gained from Horace, therefore, Clarences’ use is of right.  Secondly, the use must be continuous which Clarences’ appears to be. It was held in the case of Hollins v Verney that a right of way used three times in twenty four years was not sufficiently continuous.  Thirdly, the user must be by or on behalf of the fee simple.

Traditionally at common law, an easement could only be established by prescription if it had been enjoyed from time immemorial which is set at 1189. However, courts are now prepared to accept that a right enjoyed for twenty years may constitute a right by prescription.

Due to the difficulties of proving use since 1189, the courts agreed that if a right had been enjoyed for a period of twenty years or more they could presume that a deed had been granted but lost, which was deemed a lost modern grant.

Finally, the Prescription Act (1832) provides the only statutory support for a prescriptive easement. The Act requires that “no act or other matter shall be deemed to be an interruption”, therefore allowing for a claim under the act when there has been less than twenty years user, but requires that it has been for at least nineteen years and a day.

In conclusion, Horace should be advised that although an easement can be proved to exist, there is little evidence that a deed ever existed, therefore Clarence is solely reliant on the method of prescription which requires prolonged and continuous use of the easement.  If this cannot be proved, Clarences’ only alternative would be to rely upon a bare licence which would be based upon Berties permission to use the land. This type of licence is personal, freely revocable and does not bind third parties, such as Horace.

                                                     BIBLIOGRAPHY

Books:

1. Thompson, M.P. Modern Land Law. Oxford, 2nd Edition. (2003)
2. Kiddall, J.G. Land Law. Butterworths, 6th Edition. (1997)
3. Gray. Elements of Land Law. 2nd Edition. (1999)

Case Law:

1. Aldred’s case (1610) 9 Co.Rep. 57b at 58b.
2. Hunter and Others v Canary Wharf Ltd (1997) AC. 655
3. National Provincial Bank Ltd v Ainsworth (1965) AC. 1175
4. Re Ellenborough Park (195) Ch.131
5. Hill v Tupper (1879) 12.Ch.D. 261
6. Wheeldon v Burrows (1878) 12.Ch.D.31
7. Dalton v Henry Angus and Co (1880-81) L.R. 6 App.Cas. 740
8. Hollins v Verney (1883-84) L.R.13 Q.B.D.304

Websites:

Statutes:

1. Prescription Act 1832
2. Law of Property Act 1925 (reference only)

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