Advise Herbert.
In order to determine exactly where Herbert stands in this case, three issues need to be analysed: the relationship between Herbert’s land and the community, the relationship between his land and Pheidippides and the relationship between his land and Gerald. It is necessary to ascertain how these relationships might affect Herbert’s rights and what he can do with his land and, most importantly, how much he could expect to sell his land for. The legal topics to be discussed will range from types of property right to the possibility of covenants and easements in these circumstances.
At the outset it should be established whether or not the community have any communal property rights in the land (“rights of common”). Quite clearly they do not as the land was left solely to Herbert in his grandfather’s will. However, it is possible that the land might be common land (a town or village green). If this were so then the community may be able to stop construction on that site as they would then possess certain (albeit limited) property rights over the land. It is important to note that although they have not prevented Herbert building his house there, they may well object to a jam processing factory and so it is crucial for both Herbert and his possible buyers that this issue is clarified. Section 22 of the Commons Registration Act 1965 defines the ways in which a piece of land may be a town or village green: by a specific piece of legislation, where the community has a customary right to indulge in sports and pastimes, or where the locality have indulged in such sports and pastimes for no less than 20 years. The first method is not the case here, the second is probably not (seeing as “no other use had been made since as long as anybody could remember”) but the third could be the case if “many years” equates to more than 20. In the case of New Windsor Corporation v Mellor [1975] 1 Ch 380 CA it was held that villagers had rights in a local village green (admittedly through the second method, a customary right, but still relevant to this case) and they managed to prevent a corporation from building a multi-storey car park on their green. If the local villagers in this case protested against more building on Herbert’s land they may be successful if they could show that they had been indulging in the said sports and pastimes for over 20 years.
However, the present case can be distinguished from Mellor because firstly the locals in this case have accepted Herbert’s new arrangements and secondly it is a significant variation between the two cases that in Mellor the community’s right was acquired by custom because, as Lord Denning noted in that case, customary rights are almost inalienable. They cannot be sold or given up. Fortunately for Herbert and the fruit farming and jam processing company, it would be possible to argue that the community were able to and indeed had given up any property rights they may have held in the land because they were not the same as customary rights, and were therefore alienable. This line of argument could have an impact on the third issue regarding Gerald, which will be discussed soon.
The villagers could claim to have an easement over the land which would give them certain rights over it, using Re: Ellenborough Park as authority. However, the distinction between that case and this one is that the locals have not paid for any right over Herbert’s land, and nor is it reasonably necessary for enjoyment of their own land.
One further point on this particular issue is that the community have allowed Herbert to invest his money into the land and it would be inequitable for them to later go and claim the land as common. John Locke’s theory of acquisition, very simply put, helps to back up this secondary argument: Herbert has ‘mixed’ his labour with the land and therefore it is right that he should own it. There are arguments like this for the locality (mainly the assertion that they did not object because Herbert’s changes to the land did not have a significant effect on their enjoyment of the land) but it is not necessary to go too deeply into this area as it would be unlikely to affect the outcome of a dispute.
The second possible problem for Herbert and the company is the rights of Pheidippides in Herbert’s land. If the community were to try, unsuccessfully, to prevent more construction on the site, Pheidippides may find his jogging route permanently blocked. The big issue here is regarding covenants, as he and Herbert have apparently covenanted to ensure that no more buildings would be erected which might interfere with Peidippides’ running. If this were the case and there was a restrictive covenant here (restrictive rather than positive because Herbert is restricted, rather than being forced to do something), then it would be effective to not only Herbert, but also to all subsequent owners of the land. Such was the case in Tulk v Moxhay [1848] 2 Ph 774. This would almost certainly turn away the interest of Herbert’s potential buyers because it would prevent them from building their factory and fruit farm. Even if they could build it would be a major inconvenience to have to allow Pheidippides to run through every morning, draining the value of Herbert’s land.
However, the idea of a covenant is not to benefit individuals. For a restrictive covenant there needs two be two proprietary elements: a servient tenement and a dominant tenement. The servient tenement in this case would be Herbert’s land, which bears the burden of the covenant. However, it is difficult to identify the benefiting piece of land, the dominant tenement. Pheidippides lives in Oxford. His land is not benefiting at all from this agreement. Therefore it has to be concluded that no restrictive covenant exists. Continuing this reasoning, it could also be concluded that no easement exists between Herbert and Pheidippides.
Does Pheidippides have a property right over the land? This could possibly be result of the ineffective covenant, but such a property right was categorically ruled out in Hill v Tupper (1863) 2 H&C, 159 ER 51. This case saw the plaintiff alleging that his sole contractual right to run boats on a canal was proprietary in nature, and so he could assert that right against future canal owners. The court refused to allow this on the grounds that it would create a whole new kind of property right. Such a right would be ‘in personam’ i.e. enforceable only against the party with whom the agreement was made. As a general rule, a contract cannot be enforced against a party who was not involved in the formation of that contract. So if Herbert sold his land to the company, Pheidippides would either have to find a new route to take his morning jog, or he would have to attempt contract with the company.
The third and final issue relates to Gerald and Herbert’s property. Gerald claims to have a right to pick all the fruit from the land and sell it in his shop. This is called a profit right. However, in the case of Bettison v Langton [2001] UKHL 24 it was decided that a community cannot hold profit rights and therefore they technically had nothing to sell to Gerald. It would not be fair on Herbert if others people, with no property right in the land, could affect Herbert’s own property rights. Even if the villagers do enjoy limited rights in the land, we saw before that Lord Denning said in Mellor such rights were ‘almost inalienable’.
What has essentially happened is that Herbert has granted a licence to the locals entitling them to come onto the land and pick the fruit if they so wish. Gerald has contracted with the villagers to give himself sole access to the fruit. However, Gerald is powerless to prevent other people outside the village going onto the land and taking the fruit (as was mentioned earlier, contracts are only enforceable against those with whom they are made). Also, Herbert, or any future owner of the land could at any time decide to take away the licence and prevent anybody coming onto the land. Gerald has been quite foolish and paid £100,000 in return for very limited and fragile rights against a limited number of people.
In conclusion, Herbert and his land’s possible future owners are in quite a strong position. It is unlikely that the villagers would be successful in a claim to register their land as a village green, especially after conceding it to Herbert. The two individuals Gerald and Pheidippides both hold fairly weak cases and it is probable that Herbert would have no problem selling his land at maximum value.
Word Count: 1,531 words (with footnotes) 1,488 words (without)
Bibliography:
Property Law – Clarke & Kohler
UCL Property Law Materials Pack Volumes 1 & 2
John Locke, Second Treatise of Civil Government Ch. V: Of Property
The principles and aims of covenants were discussed in detail in r v Westminster City Council and the London Electricity Board, ex Parte Leicester Square Coventry Street Association (1990)I 59 P&CR 51
