Law Commission Making Land Work Easements - Discussion

Margie and Tom’s right to graze ponies

Discuss about the Law Commission Making Land Work Easements.

The issues in question are whether Margie and Tom as third parties, have rights over the field in question and if so how they would protect their right in the event that the property is sold. The third party right in question is referred to as profits a prendre; this is a right which allows a third party to take ‘profit’ from another’s property.[1] The term profit is not used in its literal meaning as it could describe anything from grass, fish, wood or agricultural produce. The right to graze is considered as a profit under law; profit a pasture. A profit a prendre may be granted indefinitely or for a specified period of time but can only exist if it does not conflict with the proprietor’s ownership rights.[2]

Although not expressly provided for under s 1 of the Law of Property Act 1925[3], they can be considered under s 1(2)(a) in line with eassments, rights and privileges.[4] The profit may be appurtenant or in gross; a profit a prendre appurtenant refers to a right attached to property or land in a manner similar to an easement, such a right cannot be registered in its own title.[5] A profit a prendre in gross, however, is not attached to the ownership of the land; that is, the profit owner does not have to own any land and if they do, they can still dispose the profit separately from any land they own.

With the enactment of the Land Registration Act 2002, profit a prendre in gross can be registered in their own title. They can be created by express grant or reservation, statute, prescription under common law or under the doctrine of lost modern grant.[6]

It is important to note that certain profits a prendre in gross can be considered as rights of common which, based on the provisions of the Commons Registration Act 1965[7] cannot be registered under the Land Registration Act 2002 or noted on the land register as provided for under s 33(d) of the Act 2002. Although lacking definition in law, rights of common may include, rights of pasture, turbary, estover and piscary among others.[8]

Based on case law, various tests have been established to determine the existence of a profit.

A profit a pendre in gross can be created through an express grant, prescription at common law and via statue. It can also be granted under the doctrine of lost modern grant. However it cannot be created under the rules of Prescription Act 1832 section 5. A profit in pendre in gross can also be rights in common in relation to Commons Act 2006. These rights cannot be registered under the LRA 2002. It is thus required to prove that a profit in prendre in gross is a right of common capable of being registered under CRA 1965.

Profit a prendre

Here, M&T do not have an express licence to use the land for grazing the ponies. As there was an express grant provided by the school to the parents of M&T a licence has been created in the name of the owner of the land. As the owner now are M&T they hold the licence and are not using the land nec clam nec vi necprecario.  Tom and Margie can, claim third party rights in the context of profits a prendre. The rights have been created as it has been expressly provided to them by the school. The rights are in gross as they are not dependent on the ownership of any adjacent land, as mentioned in the attendance note, the Farriers graze their ponies together with another farmer who uses the field to graze his sheep. As the land is unregistered, Tom and Margie can protect this right by lodging a caution so that when the developers apply for first registration they can be informed of the Farriers rights. Even where a overriding interest is not registered under S.29(2)(a)(ii) Land Registration Act 2002 priority is provided to it. However in the case of Strand Securities v Caswell [1965] Ch 958 it had been stated by the court that personal rights such as licence do nit give rise to overriding interest. Thus here the interest is not overriding as there is a personal licence.

Essentially, the Farriers are seeking to protect their right of way across the property in question with their ponies. A right of way is a third property right which exists by way of easement. An easement is a right granted by one landowner to another to make use of their adjacent land for the benefit of their own land and could include right to light, support or right of way.[9] The law in the founding case of Re: Ellenborough Park [1956][10] sets out the four essential features of an easement. They include the existence of the dominant (benefiting land) and the servient land (burdened land),  an easement has to have the dominant tenement, both the servient and owner have to be a different person and the right which is claimed to be an easement has to have the capacity of being the subject matter of a grant. The concept of accommodation was illustrated in Hill v Tupper (1863)[11] where the court was of the opinion that the right to put pleasure boats on a canal did not amount to an easement as it did not accommodate the land it only personally benefited the business belonging to the right owner. Here there are also two lands the dominant land owned by the school and the servient land owned by M&T.  In essence, the dominant land and the servient land should be adjacent to one another. Thus there has to be two pieces of land and the easement has to benefit the land. In relation to the second characteristics there have to be two lands servient tenement and the dominant tenement. As per the third characteristics, it has to be shown that the servient tenement and the dominant tenement are owned by two different person. The easement also have to be the subject matter in relation to the grant. 

Creating a profit a prendre in gross

Here there are also two lands the dominant land owned by the school and the servient land owned by M&T.  Both the lands are owned by different owners. The easement of the way for ponies is accommodating the dominant land of the school. And finally as the easement  is the way it has the capacity of being the subject matter of the grant.

With respect to Margie and Tom, the four characteristics of an easement have been satisfied as there are two separate adjacent properties with separate owners. The land on which the ponies are trekked qualifies as the servient tenement while Margie and Tom’s property is the dominant tenement. Trekking the ponies serves as one of the core aspects of the business that Margie and Tom run and as such the right to trek them through the school’s property “accommodates” the dominant land as a direct benefit accrues from it and also due to the proximity of the two properties. The right in itself is also capable of forming a grant as; the separate owners each have the legal capacity to give and acquire the legal right and the right in itself can be adequately defined. Additionally, the servient owner will not be adversely affected by the easement to the extent that he losses possession of the land. These aspects form the legal formalities necessary to sufficiently prove that the easement can form the subject matter of the grant.[12]

The agreement to trek ponies on the school property, however, is not in writing. It is therefore not created by deed or registered under the provisions of the LPA 1925; this means that it does not meet the qualifications of a legal interest making it automatically an equitable interest against the servient property. Margie and Tom can claim third party rights by way of easement and protect them by seeking registration under the Land Charges Act 1972. However, this equitable interest is only binding on the developers if it is registered. Margie and Tom could have relied on their long use to claim easement by prescription, however, as their use of the right was based on the permission granted by the school through negotiation with their father, they cannot make a claim of easement by prescription.[13]

Land or property may be owned simultaneously by two or more partners in varied relationships either as relatives, married or unmarried couples, friends, civil partners and even under a business relationship.[14] The law governing the rights and obligations of parties in a co-ownership can be derived from statute or common law. The provisions of statute are derived from the Law of Property Act 1925 and the Trusts of Land and Appointment of Trustees Act 1996[15].  Proprietors can be co-owners under two forms, joint tenancy and tenancy in common. A joint tenancy refers to a situation where each party has an interest in the entire estate; this interest is however not a separate share, it is held as a whole.[16] On the other hand, with a tenancy in common, each proprietor holds a separate and individual title; their interests are divided although the property may not be physically divided.[17]

Rights of common

According to s 1(6) of the LPA 1925, where land is conveyed to more than one party under law, then it is presumed that the land is owned under a joint tenancy. A legal title can only be co-owned under a joint tenancy which cannot be severed. [18]This was the position held in Stack v Dowden [2007][19] and reaffirmed in the more recent case of Jones v Kernott [2011][20]. In Stack v Dowden [2007], the parties were co-habitees who had purchased a house jointly but had made no express declaration with respect to their beneficial interest. In purchasing the house, the defendant contributed by selling one of her properties and dipping into her savings; the plaintiff, on the other hand, contributed by paying part of the mortgage instalments taken out to pay the balance of the purchase price. On separation, the plaintiff brought an action to have the property sold and the proceeds shared equally. In determining the case, the court held that at first instance, courts presume that a joint tenancy exists and that the beneficial interest is held jointly. This presumption can however be displaced where evidence is produced to illuminate that a joint beneficial interest was not the intent of the parties.

The four unites for a formation of a joint tenancy includes time, title, interest and possession. The first element requires each owner to have the shares exactly at tyhe same time. This requirement has been satisfied by M&T. The second unity suggests that title has be acquired by the owners through the same instrument. In the situation of M&T this condition is satsifeid as they got title via same instrument of the deed. The third unity provides that evey tenant have to be provided with equal interest in the property and in the present situation M&T also have equal interest. The fourth unity is that of possession according to which the joint tenants have to be provided with possession to entire land. In the present situation M&T are having entire possession in the land.

Another crucial aspect that outlines the merits and demerits of a joint tenancy is the right of survivorship, also referred to as jus accrescendi. Based on this concept, a joint tenant cannot transfer their ‘share’ or interest in the property upon death by will neither will it be considered as part of their estate should they die intestate.[21] Upon the demise of one proprietor, the surviving co-owners take up the interests of the deceased. Additionally, where the tenants decide to sell the property the proceeds will be shared equally regardless of the percentage of contributions each party provided towards purchase or maintenance of the property. Similarly, in the same way that profits are shared equally, liabilities or loses are shares in a similar manner. Joint tenants are usually held jointly and severally liable for the liabilities or encumber ances arising out of the property.[22]

Margie and Tom’s right to trek ponies

As aforementioned, with a tenancy in common, the parties own a distinct beneficial share regardless of the fact that the property may not be physically divided. Additionally, a tenancy in common cannot be created under statutory law,[23] however under common law or in equity; property can be held under tenancy in common.[24] The beneficial interest can be held under a tenancy in common which may be created by an express declaration or through equitable presumptions. As illustrated in Payne v Webb [1874][25] the use of certain phrases in the conveyance could amount to an express declaration of intent to hold the beneficial interest as tenants in common. In this case, the phrase, ‘in equal shares’ was considered as a ‘word of severance’ which translated to the formation of a tenancy in common as opposed to joint tenancy.

In circumstances where an express declaration as to the formation of a tenancy in common is lacking an equitable presumption may be made with respect to the actions and implied intent of the parties. In cases other than in domestic property as illustrated Stack v Dowden [2007], unequal contributions to the purchase price of the property can be construed to create a tenancy in common. As illustrated in Re Fuller’s Contract [1933],[26] where parties intend to operate separate businesses but within the same premises, it would be presumed that a tenancy in common exists. This also applies in the case where parties are business partners; the essence of the presumption to tenancy in common is that the right to survivorship arising from a joint tenancy would be unfair in such a scenario.[27] A tenancy in common is, therefore, better suited for a scenario where parties wish to circumvent the right of survivorship and transfer their property at Will. Additionally, it ensures that parties receive their proceeds based on their contributing percentages. In the same regard, liability under a tenancy in common is only to the extent owed based on the percentage of ownership.

As discussed above, where co-owners are jointly registered as proprietors under law, it is presumed that a joint tenancy exists with joint beneficial interest. Proprietors cannot jointly own a legal title under a tenancy in common. Margie and Tom are the registered proprietors of the Stables; as such they are co-owners under a joint tenancy. The implications of this form of ownership are that they each own interests in the property as a whole. As such, should they decide to sell the property, they would be entitled to an equal share or proceeds. Additionally, a right to survivorship exists in that, should either pass away before the other, their interest in the title would pass to the surviving co-owner. This is regardless of the existence of a will attempting to transfer rights to another party. Margie and Tom, however, are interested in transferring the proceeds of the sale of their property to different parties in the event of their death. In order to do so, they should consider severing the joint tenancy and converting it into a tenancy in common which would allow them to transfer any interest in the property via a Will. Either of the parties can serve a notice to the other of their intent to convert and then have the register of title amended to reflect this change.[28]

Easements

Based on the application of the Limitation Act 1980, a squatter can acquire title over unregistered land if they can prove adverse possession over the property for an uninterrupted period of 12 years. The provisions of ss15 and 17 limit actions for the recovery of land and allow for the extinction of a title to land following the expiry of twelve years. With respect to registered land, a squatter does not gain an automatic right to land but can make an application under sch 6 of the Land Registration Act 2002 after 10 years of adverse possession for registration as the property owner. The registered owner is given notice of the application and granted an opportunity to object.

In addition to the requirements set under statute as described above, certain elements must be satisfied in order to make a successful claim for adverse possession. The claimant must demonstrate factual possession of the land which was gained adversely and they must prove intent to possess.[29] These elements were identified in Powell c McFarlane (1977)[30] where Slade J stated that possession is understood as a degree of control or occupation over the property coupled with intent; a person with a lack of paper title can only prove possession if they can provide evidence as to factual possession and the intention to possess. In this case, the plaintiff lived on a farm belonging to his grandfather; the defendant owned the adjacent property. When the defendant moved overseas, the plaintiff began using his property to graze livestock, for shooting and also made repairs to the fence. This was for a period of over twelve years. It was held that there was no adverse possession as the plaintiff lacked factual possession.

According to Slade J, factual possession is demonstrated where a significant degree of physical control is evident with the squatter using the land in a manner that an occupying owner would be expected to without interruption.[31] This concept was affirmed in J A Pye (Oxford) Ltd v Graham [2002][32] whereby the plaintiff’s claim over their property was defeated on grounds of adverse possession as the defendants were able to prove factual possession based on the grounds that they had occupied the land, had physical control and the plaintiff was physically excluded by lack of access to the property. Additionally, the defendants were able to prove an intent to possess by continuing to possess and use the land as they would their own. The defendants, therefore, succeeded in dispossessing the plaintiff by providing evidence to prove legal possession.

Essential features of an easement

The possession must be adverse, that is without the owner’s consent, in order to be considered sufficient. As illuminated in Buckinghamshire County Council v Moran [1990],[33] occupation or control over the land by way of a licence or permission from the owner of the paper title does not constitute adverse possession against the title owner. Although not an essential requirement, fencing off land can be used as evidence for factual possession as illustrated in Williams v Underwood (1983)[34] where the squatters had fenced over a portion of the title owner’s property over which they originally had a right of way. They succeeded in claiming adverse possession against the paper owner based on the enclosure which was construed as evidence for factual possession. However, as Boosey v Davis (1988)[35] illustrated, fencing does not always amount to factual possession. In this case, the plaintiffs used the defendants land to graze their goats; they had erected a mesh fence to facilitate their activities. The court was of the opinion that the fence was used to keep the goats in and not necessarily to demonstrate physical control over the property.

The portion of land on which the vegetable garden is held is part of the unregistered property belonging to the school. Therefore, with respect to the principle of adverse possession, it is subject to the provisions of the Limitation Act 1980 whereby a person can claim ownership if they can prove factual possession and intent to possess for an uninterrupted period of over 12 years. Margie and Tom have been using the garden for well over thirty years. Fencing of the property demonstrates a certain level of physical control and occupation over the property which illustrated factual possession. Further, by establishing a vegetable garden and continuing to use it as such for over 30 years demonstrates an intent to possess. These factors demonstrate the essential features necessary to make a claim for adverse possession. As the title in question is unregistered land and a period of twelve years has expired, the right to bring an action for recovery has expired and based on s 17 of the Limitation Act 1980, the title to land is extinguished. Margie and Tom can, therefore, claim legal ownership over the property holding the vegetable garden based on the principle of adverse possession.

Reference

[1] Judith Bray, Unlocking Land Law (3^rd edn, Oxon, Routledge 2010) 281

[2] ibid

[3] Herein referred to as the LPA 1925

[4] Law Commission, Making Land Work: Easements, Covenants and Profits a Prendre (Law Com No 327, 2011) para 2.37

[5] HM Land Registry, ‘Guidance Practice guide 16: profits a prendre’ (GOV.UK, 6 April 2018) https://www.gov.uk/government/publications/profits-a-prendre--2/practice-guide-16-profits-a-prendre accessed 26 May 2018

[6] ibid

[7] The Commons Registration Act 1965 will be repealed by the Commons Act 2006 when it comes into full force.

[8] HM Land Registry (n 5)

[9]Katie Gray, ‘What is an easement and how are they created and used?’ (Tanfield, 16 February 2016) https://www.tanfieldchambers.co.uk/resources/articles/what-is-an-easement-and-how-are-they-created-and-used accessed 26 May 2018

[10]Re: Ellenborough Park [1956] 1 Ch 131

[11]Hill v Tupper (1863) 2 H & C 121

[12] Gray (n 16)

[13] HM Land Registry, ‘Guidance Practice guide 52: easements claimed by prescription’ (GOV.UK, 6 April 2018) https://www.gov.uk/government/publications/easements-claimed-by-prescription/practice-guide-52-easements-claimed-by-prescription accessed 26 May 2018

[14] Martin Dixon, Modern Land Law (9^th edn, London, Routledge 2014) 133

[15] Herein referred to as the TOLATA 1996

[16] Samantha Hepburn, Principles of Property Law (3^rd edn, London, Routledge 2013)

[17] ibid

[18] LPA 1924, s 36(2)

[19]Stack v Dowden [2007] 2 AC 432

[20]Jones v Kernott [2011] UKSC

[21] Mark Politz and Stuart Goodbody, ‘Jointly-owned property: joint tenants or tenants in common’ (Thomson Snell & Passmore, 6 April 2018)

[22] Mark Loveday and Chloe Sheridan, ‘Can a joint tenant drop out’ (Tanfield, 29 January 2018) https://www.tanfieldchambers.co.uk/resources/articles/can-a-joint-tenant-drop-out accessed 24 May 2018

[23] LPA 1925, s 34(1)

[24] Judith-Anne Mackenzie, Textbook on Land Law (16^th edn, Oxford OUP 2016) 299

[25]Payne v Webb [1874] LR 19 Eq 26

[26]Re Fuller’s Contract [1933] Ch 652

[27] Mackenzie (n) 303

[28]Politz and Goodbody (n)30

[29] HM Land Registry, ‘Guidance Practice guide 5: adverse possession of (1) unregistered land and (2) registered land where a right to be registered was acquired before 13 October 2003’ (GOV.UK, 20 November 2017) https://www.gov.uk/government/publications/adverse-possession-of-1-unregistered-land-and-2-registered-land/practice-guide-5-adverse-possession-of-1-unregistered-and-2-registered-land-where-a-right-to-be-registered-was-acquired-before-13-october-2003 accessed 26 May 2018

[30]Powell c McFarlane (1977) 38 P & CR 452

[31] ibid                                                         

[32]J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; 3 WLR 221

[33]Buckinghamshire County Council v Moran [1990] Ch 623

[34]Williams v Underwood (1983) 45 P & CR 235

[35]Boosey v Davis (1988) 55 P&CR 83