Land law problem question - access

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The Land Registration Act 1925, which first introduced the system of registered land, its aim was to simplify conveyancing by placing all the essential information about an estate in the land on a register. In 1998, Law Commission and the Land Registry proposed major changes to the system of registered title, by a consultative document, Land Registration for the Twenty-First Century, Law Com No 254. In the view of this, the LRA 1925 was repealed and replaced by the Land Registration Act 2002. 

The LRA 2002 has maintained the basic structure of registered land introduced by the LRA 1925.However under the new Act, more titles to land must now be registered; more interest must now be entered on to the register to be protected, consequently reducing the overriding interests; the way in which property can be acquired through adverse possession has been fundamentally watered down; a system has been put in place which paves the way for electronic conveyancing.

The system is often described as being based on three principles:

1. The mirror principle. This means that the register is intended to reflect accurately all the facts material to a given title. A purchaser is not concerned with the past history of the title, nor is he required to carry out the sort of inquiries and inspections that may be expected of the purchaser of unregistered land; the doctrine of notice has no application.  However, the mirror is cracked as the existence of a category of overriding interest that bind despite not being protected on the register means that the registered title does not accurately reflect the totality of interests material to the given title.

2. The curtain principle. Trusts are kept off the title in order to simplify the transfer of

the legal estate. . It is sometimes argued that the curtain is ripped as, according to State Bank of India v Sood, overreaching can only occur if the trustees are acting intra vires. This would appear to require the transferee to inspect the trust instrument to check whether the trustees have the power to transfer title.

3. The insurance principle. The title is guaranteed by the state and is indefeasible without compensation. However, the insurance premium is probably the most expensive in the world with only an extremely tiny proportion of the fees received being paid back out in compensation.

Back to the question, since there have 4 parties claiming their rights respectively. This required us to consider whether their rights can bind against Hawkins, the area of law on easement, lease, freehold covenant, and co-ownership will be discussed. A labelling approach will be adopted.


The right to cross the rear garden that Bones claims might be an easement. Easement is the right that a person may exercise over the land of another, the right in question was fallen under this category. This is a proprietary right that may exist both at law (the Law of Property Act 1925 s.1(2)(a)) and in equity. To make it as an easement, Bones must satisfy the test from Re Ellenborough Park [1956] and is created by one of the recognised methods.

The four requirements under Re Ellenborough Park [1965] are:

First, there must be a dominant land and a servient land. Easement may not exist in gross, cannot exist independently of land. (Blenheim Estates Ltd v Ladbroke Retail Parks Ltd). Besides, both land must be identified at the time of creation. From the fact, the Bones’ land will be the dominant land; Hawkin’s land will be servient land .

Second, the right must accommodate the dominant land. This is a question of fact (Re Ellenborough Park). Fact didn’t reveal the purpose of using the right, however it mustn’t confer a purely personal advantage (Hill v Tupper). An easement may confer commercial or business advantages on the dominant tenement, provided there has some connection between the right and the dominant (Moody v Steggles; Platt v Crouch; London and Blenheim Estate Ltd v Ladbroke Retail Parks Ltd). Without connection with the dominant land, a right is a pure and undefined recreational use may not be an easement (Mounsey v Ismay).Bones should show that the right makes the dominant tenement a better and more convenient property. Besides, he should prove there has sufficient proximity between the both land (Bailey v Stephens), although they need not be next to each other (Pugh v Savage)

Third, there must be a diversity of ownership or occupation of the dominant land and servient land. One cannot have an easement against his own land (Roe v Siddons). It is clear that the owners of both lands are different persons, and is occupied by different individual, namely Bones and Hawkin.

Fourth, the right must be lie in grant. Since an easement is a right capable of existing at law, it must capable of being granted by deed. Bones must show the following: There must be both a capable grantor and a capable grantee, a grantor must have the power to grant the easement (Mulliner v Midland Railway Co); a grantee must be a definite person or body.Besides, the right must be sufficiently definite, which must be capable of reasonably of exact description. Lastly, the right must be within the general nature of rights capable of existing as easements. This is unlikely to be a problem as rights of way are an established category of easement.

The right is likely capable of being an easement, provided it doesn’t involve the servient landowner in doing any positive action or expending money (Regis Property Co Ltd v Redman). Neither right that an undue restriction on servient landowner (Phipps v Pears), or a claim to exclusive or joint possession of the servient tenement (Copeland v Greenhalf) exist as an easement. An intermittent consensual privilege will not amount to an easement as well (Green v Ashco Horticultural Ltd).


Then, Bones must establish that the right has been acquired as an easement by one of the recognized methods of acquisition: express grant, implied grant or prescription. The fact that the exercised right was based on an informal agreement, which might infer that the express words creating an easement may not appear in the actual documentation. Bones might acquire through an implied grant or prescription.

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An implied grant will be either through ‘necessity’ or ‘common intention’ however both methods are strictly limited by the court. An easement will be implied provided Bones can prove the land would be landlocked without the right of way under necessity, mere inconvenient is insufficient (Manjang v Drammah). For common intention, he has to prove that right is essential to fulfil parties’ mutual intention for the land to be used in the particular way (Stafford v Lee), however fact didn’t show the presence of common intention.

Since the right has been exercised for so many years, Bones might acquire an ...

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