Property Rights and Easements

In the current case, the first issue to deal with is whether the right to use of leisure facilities at the Castle is just a mere right of recreation or an easement. The second issue to deal with is whether Richard could reinforce a right of way to use the Drive between the House and the Farmland. The final issue is considering that Geraldine left the remainder of the lease to Richard, whether Richard as assignee of the lease can claim the rights.

Easements are proprietary rights attached to the land. It can attach a permanent burden to a piece of land, called the dominant land, and a corresponding permanent burden to another piece of land, called the servient land. Express grant of an easement is completed by registration. In this case, the easement is acquired through a deed. The express grant of such legal easement is a registrable disposition, as provided by the LRA 2002, s27(2)(d). Lord Evershed, in the case of Re: Ellenborough Park, stated that a right cannot be capable for forming the subject-matter of a grant over someone else’s land if it is merely a right of recreation that does not possess quality of utility or benefit.

Utility and recreation are different in their characteristics. Recreation cannot be the subject of an easement. This position was modified in the case of Regency Villas Title. The Supreme Court held that right to use a servient land for purposes of recreation can be an easement. It held that exercise, sports, games, etc., has become part and parcel of modern life and they are not merely recreation. In case they were, it has to be determined whether these activities could not be an easement in the first place. In this case, an old estate and parkland were converted into a leisure resort and timeshare complex. Part of the land and Elham House were also converted into timeshare units. Elham House’s freehold was held by Trustee. There was a Mansion House on the estate as well. It was also converted into timeshare units on the upper floor and on the ground floor and basement had leisure facilities, snooker room gym, etc. The ground floor had also heated swimming pool and other leisure facilities. The issue was regarding a declaration sought by Elham House and the Trustee regarding their right to use the leisure and sporting facilities granted to them while they bought their units. The Supreme Court held that these rights are not mere rights, but are easements. It held that facilities grant constitutes the grant of a single comprehensive right to use the complex of all the facilities. It includes the facilities at the time of grant of the rights and also the additional or replacement facilities made afterwards within the park as a part of the leisure complex.

1. Re: Ellenborough Park [1956] Ch. 131, CA 2.; King v David Allen (Billposting) Ltd. [1916] AC 54.
2. Re: Ellenborough Park [1956] Ch. 131, CA 2.; King v David Allen (Billposting) Ltd. [1916] AC 54.
3. Alison Clarke, Principles of Property Law ( Cambridge University Press 2020) 502.
4. Re: Ellenborough Park [1956] Ch. 131, CA 2.; King v David Allen (Billposting) Ltd. [1916] AC 54.
5. Sandra Clarke and Sarah Greer, Land Law Directions (Oxford University Press 2012) 330.
6. Ben McFarlane, Nicholas Hopkins and Sarah Nield, Land Law: Text, Cases, and Materials (Oxford University Press 2012) 901.
7. Sandra Clarke and Sarah Greer, Land Law Directions (Oxford University Press 2012) 330.
8. Re: Ellenborough Park [1956] Ch. 131, CA 2.
9. Re: Ellenborough Park [1956] Ch. 131, CA.
10. Regency Villas Title Ltd. v Diamond Resorts (Europe) Ltd [2018] UKSC 57.
11. Regency Villas Title Ltd. v Diamond Resorts (Europe) Ltd [2018] UKSC 57.
12. Regency Villas Title Ltd. v Diamond Resorts (Europe) Ltd [2018] UKSC 57.

In the current case, the House is the dominant land and the Castle is the servient land. Similar to the grant of rights to use leisure and sporting facilities at Mansion House, Geraldine was also granted the right to use the to use the existing leisure facilities at the Castle. This right is a proprietary right attached to the House and was expressly granted by the lease deed. Accordingly, such right to use of leisure facilities at the Castle cannot is a proprietary right attached to the House. According to the principle held in Regency Villas Title, such right, this right cannot, thus, be considered as mere recreation. The grant to Geraldine constitutes a single comprehensive right to use the complex of facilities in the Castle, which also includes rights over new additional facilities. Accordingly, the new facilities constructed in 2012 will form part of the complex of facilities and rights to use them are attached to the House.

A right of way is a type of easement that allows a person to travel through another’s property to get to another location. It is the obligation of the owner of servient tenement to ensure that the dominant tenement exercises this right without interference. In relevant to the current case, it needs to be determined whether this right of way to use the driveway in the way Richard was using could be claim as easement. Easement can be acquired by an express grant generally through a deed. It can be implied grant. Implied easement is also based on necessity and common intention and Section 62 of the Law of Property Act 1925. Easement can be by prescription through open and continuous long use without permission. In the current case, the lease deed grants the right to use the Drive to access the House from the main road. However, Geraldine used the Track to access the Farmland from the main road but drove her tractor along the Drive when travelling between the Farmland and the House, where she parked her tractor. This use of the Drive is different from the manner of use as granted in the Lease. Also, Richard also used the Drive when travelling between the Farmland and the House. This is also different from the express grant. This issue is to establish whether the right to use the Drive could be granted under implied grant or under prescription.

13. Regency Villas Title Ltd. v Diamond Resorts (Europe) Ltd [2018] UKSC 57.
14. Regency Villas Title Ltd. v Diamond Resorts (Europe) Ltd [2018] UKSC 57 at para 26.
15. Christine Rossini, English As a Legal Language (Kluwer Law International 1998) 61.
16. Copeland v Greenhalf [1952] Ch 488.
17. Ben McFarlane, Nicholas Hopkins and Sarah Nield, Land Law: Text, Cases, and Materials (Oxford University Press 2012) 901.
18. Ben McFarlane, Nicholas Hopkins and Sarah Nield, Land Law: Text, Cases, and Materials (Oxford University Press 2012) 901.
19. Ben McFarlane, Nicholas Hopkins and Sarah Nield, Land Law: Text, Cases, and Materials (Oxford University Press 2012) 901.
20. Ibid.

The rule in Wheeldon states that if a person transfers a part of her land to another, it may impliedly include a grant of all the rights in the easement that the person used and enjoyed before the transfer. Such rights must be apparent and continuous and also are necessary to enjoy the part transferred. In the current case, the different use of the Drive by Geraldine or by Richard cannot be considered an implied grant. The facts of the case do not show William and Felicity Nesfield used the Farmland or the Drive in the way Geraldine or Richard did. Thus, this does not give rise to any easementary rights to use the Drive in the way they use. In Wheeldon, it was observed that before the sale or lease of the dominant land, in the current case the House, there was not even a slightest sign of there being an easement in favour of the dominant land. Similar observation was made in the case of Wong v Beaumont that before and at the time the original lease was made, there was no indication that a ventilation shaft was need down to the basement. Thus, from this perspective there is no implied grant of rights.

As per the Prescription Act 1832, ss 1 and 2, the minimum period is 20 years use of right for easements. For acquisition of easement through prescription, there should be a long use that shall be “as of right”. It means the use of the servient land by the owner of the dominant tenement must be a use as of right. This use must be without secrecy, which is supported by the case of Union Lighterage Co. v London Graving Dock Co. where the owner of a land must be taken to have had a reasonable opportunity of becoming aware of the use and there is no secrecy behind the use. The use must be without force, indicating forcible assertion or continued use against protests by the servient owner. The use must be without permission. This was seen in Odey v Barber where the claim to a prescriptive right of way had failed as the use of the track was with permission of the owner of the servient land. The use of the land must be in the character of easement. This is supported by the case of Palmer v Bowman. In the current case, both Geraldine and Richard were using the Drive in a manner not in accordance with the grant of rights under the lease. Such use was without any permission, assertion of force, or without any secrecy. The period of use was long enough to be considered an easement and it provided a reasonable opportunity for William of becoming aware of the use. However, claim for easement through prescription will fail as the use does not meet the minimum requirement of 20 years use as per the Prescription Act 1832. An alternative perspective could be whether the right to use the Drive constitutes a privilege.

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21. Wheeldon v Burrows (1879) LR 12 Ch D 31.
22. Wong v Beaumont Property Trust Ltd [1965] 1 QB 673.
23. Roger Sexton and Barbara Bogusz, Land Law (Oxford University Press 2011) 571.
24. Roger Sexton and Barbara Bogusz, Land Law (Oxford University Press 2011) 600.
25. Union Lighterage Co. v London Graving Dock Co. [1902] 2 Ch 557.
26. Martin Dixon, Modern Land Law (Routledge 2012) 311.
27. Odey v Barber [2006] EWHC 3109 (Ch).
28. Martin Dixon, Modern Land Law (Routledge 2012) 310.
29. Martin Dixon, Modern Land Law (Routledge 2012) 312.
30. Palmer v Bowman [2000] 1 W.L.R. 842.


The Law of Property Act 1925 provides that the only charges or interests in or over a land that can subsist, be created or conveyed at law are easement, rights or privileges for an interest that is equivalent to an estate in fee simple absolute in possession or a term absolute.

Section 141 of the Law of Property Act 1925 states that any covenant or provision may be enforced by the lessee. It must be noted that all covenants in a lease will run on assignment of the lease. The Landlord and Tenant (Covenants) Act 1995, ss 2 and 3 provide that all landlords and tenants covenants pass automatically whenever the lease or the freehold is assigned, except when they particularly state to be personal in nature. It does not matter to consider whether they concern the land or they have references to the subject matter of the lease. This is supported by Section 141 and 142 of the Law of Property Act 1925. Under rules governing the privity of estate, the burdens attached to a covenant pass to the assignee of a lease, unless the lease specifically expressed it to be personal in nature. An assignees may also be entitled to enforce covenant of the landlord as ‘touch and concern’ the land.

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31. Roger Sexton and Barbara Bogusz, Land Law (Oxford University Press 2011) 8.
32. Judith-Anne MacKenzie and Mary Phillips, Textbook on Land Law (Oxford University Press 2012) 239.
33. Mark Davys, Land Law (Red Globe Press 2019) 127.
34. Spencer (1585) 5 CO. Rep 16a.
35. Abbey R and Mark Richards, Property Law 2018-2019 (Oxford University Press 2017) 11.
36. Judith-Anne MacKenzie and Mary Phillips, Textbook on Land Law (Oxford University Press 2012) 238-239.

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