This concerns licenses and the servitudes; easements and profit a prendre with the key issue being whether the agreements that John (J) and Fred (F) have in place can become binding on a third party, Alice (A)and are capable of being propriety rights after the title has been sold. An easement is a right benefiting one piece of land (known as the dominant tenement) that permits the rightful users of that land to perform specified actions over an adjacent piece of land (known as the servient tenement). Easements are legal interests under s1 (2) (a) of the Law of Property Act 1925 (LPA 1925)1. A profit a prendre is has similarities to an easement, firstly they are both incorporeal heriditaments, rights attached to property and which are inheritable with acquisition of land, a profit differs however from an easement in that a profit a prendre entitles the holder of said servitude to take ‘take something off the land’2 Normally but not necessarily for some commercial gain as shown in the case known as the ‘Timbergetters of Pennant Hills.’ 3 4
A license however grants permission to do something on or affecting land which would otherwise constitute a trespass.
The key difference here is that easements ‘run with the land’ meaning they are rights in rem and must be passed on with the transfer of the land. Licenses however are not as entrenched as easements as they are simply personal rights and a license cannot bind a stranger5 and often third parties. Not only this but where easements are limited and quite restrictive licenses can be used to permit of a whole plethora of activities, ranging from throwing a dinner party or holding a festival.6 A bare license however can be subject to conversion into an easement using s.62 LPA 1925.
There are certain criteria that must be met in order for there to be an easement which were laid down in Re Ellenborough Park 7
(1) There must be a dominant and a servient tenement; which incurs a benefit upon the dominant tenement and a burden upon the servient tenement, London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd8. It is vital that the dominant land is clearly identifiable.
(2) An easement must accommodate the dominant tenement; this in essence means that the easement must benefit the land and not just the owner for the ‘time being’ as a personal advantage is not sufficient as highlighted by Tupper v Hill9
(3) The dominant and servient owners must be different persons; a person cannot hold an easement over themselves unless there is found to be a Quasi-easement which are in fact capable of conversion into a real easement following the principles of Wheeldon v Burrows10
(4) A right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.’11 That is, it must be capable of being granted by a person or body who is legally competent to grant it.
One must consider on behalf of F whether the issues satisfy these criteria and thus an easement or profit a prendre thus binding A by S’s prior agreements or whether they are merely licenses capable of being revoked at the transfer of the title.
Firstly; the car parked in the garage, this poses a number of problems as to whether this could in fact be a proprietary right thus binding A. Generally speaking a right to park a vehicle can be an easement as the ‘unreported case of Newman v Jones12’ highlighted this.
The only stipulation to this is that the right to park must not be so extensive that it amounts, in effect, to an exclusion of the owner from the land. The effect of such a grant was explained in Reilly v Booth 13 where the court ruled that exclusive or unrestricted use of a piece of land passes the property or ownership in that land, and that there was no easement known to law which gave exclusive and unrestricted use of a piece of land. Two cases in particular have illustrative importance Saeed14 in which the court decided to leave open the potential easement status of car parking and instead weigh up the issue of exclusive use and Montrose v Shamash.15 Using these aforementioned cases in relation to F it is clear to see that his continued use violates this rule of exclusivity which would prevent A from using her own garage and land, even if hypothetically F only used the garage on evenings and weekends or perhaps just during the day using Batchelor v Marlow16 which involved car parking on business hours on weekdays, although not the same, a similarity could be drawn but this would still render A unable to enjoy her land. Another case to reiterate this point is Platt v Crouch.17 It is with this the conclusion can be drawn that this is in fact a bare license which is a mere permission, and as is stated in Thomas v Sorrell18 it confers no proprietary status thus not binding or ‘running with the land’ as an incorporeal heriditament.
The next issue which must be analysed is whether the right to use the swimming pool is a right in rem rather than a right in personam. What one would look to explore firstly as to whether under the Prescription Act 1832 (PA 1832) an easement acquired via prescription is possible given that Fred has had enjoyment of said right over the past 7 years. The problem with this however is in association with the term of years in which this right has been in place. This Act introduced two prescription periods; the short period (20 years) and the long period (40 years). Both terms are for a period ‘next before some suit or action’ which means that the right cannot be said to be established unless there has been litigation to do so.
Within the statute the “without interruption” is used (s2. PA 1832), as of right, and by and against the fee simple. A claim based on the shorter period cannot be defeated by evidence that it was first enjoyed at some time prior to that period, but it can be defeated in other ways possible at common law, whereas a claim based on the longer period can only be defeated by evidence of written consent. Even if F’s second term of lease had come to an end and it been renewed 10 years would still not amount to a sufficient term of years in order for an easement via prescription.
Traditionally rights of enjoyment and amusement, which is what this is were not capable of becoming easements Mounsey v Ismay 19with the rationale seeming to be insubstantial and provides little definable benefit to the dominant tenement and namely because its scope it’s purely personal much like that of a bare license. Also it is accepted that the concept of jus spatiandi, ie. A privilege of wandering at will over all and every part of another’s field or park.’20 It would seem however what with Re Ellenborough Park these restrictions are not absolute. This allowance however is particularly in cases involving a number of ‘lot holders’.21 Furthermore there is no benefit to the land and only to Fred this it would appear that this too is merely a bare license and therefore revocable on transfer of title. In addition with regards to express formation the grant cannot be oral as s53 (1) (a) LPA 1925 requires an interest in land to be created in writing which in both of the above issues it has been.
Finally the flowers; this is a license coupled with a grant of an interest which involves a profit a prendre and a permission to enter the land to exploit said interest. The problem for F arises with the creation of a valid profit a prendre must be created either by deed as shown by Reid v Moreland Timber in which the court were prepared to regard informal writing as enforceable22 or by prescription (explained earlier). So long as it was validly created there would be a proprietary interest which would be irrevocable and thus capable of being assigned to a third party, A, as in Musket v Hill.23As it would appear this is not the case it leaves F in quite a quandary as it stands because none would be binding on A and thus were revoked on the transfer of title to her from S.