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Issue

The main issue in relation to the provided situation is what shall be the rights as well as responsibilities of Mithra as per the law relating to the easements.

An easement can be said to be a limited restricted right that is actually enjoyed by a specific landowner over the specific of any other. 2 plots of any land are very important in this regard, which are the dominant and the servient tenements. Easement can be said to be any right benefiting any particular piece of the land (which is called to be the ‘dominant tenement’) that is actually enjoyed over the particular land owned by somebody else (which is called to be the servient tenement). Normally, the above said right allows or facilitates the owner in relation to the ‘dominant tenement’ to perform any certain thing on the land of the other individual, like utilizing a specific path or running services over it. Such kind of easement is at certain times denoted as ‘positive easement’. More infrequently, any particular easement will restrict what the particular owner in relation to the ‘servient tenement’ might perform on the particular land. For instance, the owner may not be allowed or permitted to construct structures that could interfere with the right to the light of somebody else. Such kind of right is at certain times known as ‘negative easement’.

The case of Re Ellenborough Park [1956] Ch 131 should be considered in association to the given scenario. In this famous case, it had been stated that an easement shall exist or an easement shall be granted only if four conditions are fulfilled, which includes (i) there should be a dominant as well as servient tenement, (ii) the easement should accommodate the specific dominant tenement (such accommodation should go beyond just raising value of dominant tenement, and also the particular easement should be connected to the utilization of the specific dominant tenement), (iii) the dominant and the servient tenements should have distinct owners, and (iv) the particular right should possess the capability of being the specific subject matter of any grant.

The case known to be Harris v Flower (1904) 74 LJ Ch 127 must be mentioned in connection to the given situation due to the importance of this specific case in this regard. In the Harris v Flower case, it had been stated that when any new exercise in relation to the easement by the dominant tenement actually falls beyond the terms provided in the initial grant of the specific easement, then the servient tenement may restrict the dominant tenement from such new exercise of the tenement. However, in the case of Das v Linden Mews Ltd [2002] EWCA Civ 590, it had been stated that where it shall be possible to establish that the new exercise in relation to the easement by the dominant tenement actually falls within the specific terms provided in the initial grant and is simply ancillary or supplementary to the utilization of the dominant land, then the rule that has been forwarded in Harris v Flower, shall not work or function.

Rule

The case quoted to be Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd & Others [2018] EKSC 57 must be specified that in relation to the given situation due to the significance of the case. In the well-known Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd & Others case, it had been specified in the present times, the “mere recreation or amusement” of the ‘accommodation test’ (as forwarded in the case of Re Ellenborough Park (1956)) shall include those particular facilities that would certainly be a beneficial portion in relation to the modern life, and it was also specified in the above said case that the common law must support and endorse structures that promote as well as encourage such facilities, instead of treating it as bereft of practical benefit or utility.

The case of Easton v Isted (1903) 1 Ch. 405 CA can be said to be another pertinent case in relation to the scenario that has been provided. In the above said pertinent case, it had been mentioned that the right that might be claimed in any easement, should be adequately or sufficiently certain. There should not be any wide or vague right. It was further specified in the above said case that there cannot be any right in relation to uninterrupted light, although, there might be a specific right in relation to the light that might flow through any specific window.

A particularly significant case in relation to the provided circumstance would be the case of Duke of Westminster v Guild [1985] QB 688. In the Duke of Westminster v Guild case, it was deliberated that the right in the particular easement should never impose or levy any positive burden upon the servient owner. Another relevant case in this regard can be said to be the case of Rance v Elvin [1985] EWCA Civ 7. In the Rance v Elvin case, it had been said that no positive burden could be levied upon the servient owner, however, if the servient owner has any specific responsibility in respect of the dominant owner as per any implied contract amidst them, then the servient owner shall be obligated to fulfill that specific responsibility.

The case of Copeland v Greenhalf [1952] Ch 488 must be mentioned in this regard as this case is a relevant case in relation to the given circumstance. In the Copeland v Greenhalf case, it had been mentioned that the claim of the dominant tenement shall not be established in the form of an easement, if it is a claim to complete possession of the specific servient tenement. It had been specified in the above said case that any right, which would be wide, extensive as well as undefined in nature, should never be considered to be the adequate subject matter of any specific easement.

Application

The case cited to be London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157 must be deliberated in relation to the situation that has been given. In the London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd case, it had been stated that if any specific right, which has been granted in an easement in relation to a specific area, is such that it might leave any of the owner (specifically the servient owner) without any kind of reasonable utilization of the land, then, it shall not be considered to be an easement, rather, it might be considered to be some different or larger grant.

Another important case in relation to the scenario that has been provided can be said to be the case quoted to be Moncrieff v Jamieson [2007] UKHL 42. In the Moncrieff v Jamieson case, it had been said that the main thing that should be asked while considering a right or claim for an easement is whether the servient owner (subject to reasonable exercise of the specific right) actually retains the possession as well as control in relation to the servient land.

The case cited as Virdi v Chana & Ors [2008] EWHC 2901 (Ch) can be considered to be a crucial case in relation to the provided circumstance. In the Virdi v Chana case, it was said that any servient owner of a land shall be considered to have retained the reasonable utilization of the land if he possesses the right to control and exercise other rights over the land. Similarly, in the case cited to be Kettel & Ors v Bloomfold Ltd [2012] EWHC 1422 (Ch), it had been stated that the right of the dominant owner in relation to the parking shall not deprive the specific servient owner of any reasonable utilization of the particular land if the servient owner retains the right to exercise complete control in connection to that part of the land.

In the case of Sweet v Sommer [2005] EWCA Civ 227, it had been said that in the case of the implied easement, it had been obvious from the particular nature of the house or property and the situations that the vehicular access was actually necessary, or else the house would not be capable of a meaningful utilization in the absence of such easement.

In the given scenario, the Mithra purchased land from Angra (where she built a house). The land was purchased along with an easement for crossing a small area of land in relation to which the owner was Angra. The easement specified the right to use for every purpose related to the utilization as well as enjoyment of property, although not for other purposes. In the scenario, Angra did not allow to establish the fiberoptic cable (for internet purposes) stating the superfast broadband was not at all important. Furthermore, Angra built a new extension to her house blocking the sunlight to the kitchen of Mithra as well as blocking the view. Angra also commenced to utilize an old path by crossing the garden of Mithra in order to visit an adjacent river.

Applying Re Ellenborough Park [1956] Ch 131, it can be stated that an easement exists amid Mithra and Angra as the four conditions have been fulfilled, which includes (i) a dominant as well as servient tenement, (ii) the easement accommodating Mithra, (iii) the dominant and the servient tenements having distinct owners (the dominant owner is Mithra and the servient owner is Angra), and (iv) the particular right possessing the capability of being the specific subject matter of any grant.

Applying Harris v Flower (1904) 74 LJ Ch 127, it should be stated that no new exercise in relation to the easement by Mithra actually falls beyond the terms provided in the initial grant of the specific easement, and hence, Angra cannot restrict Mithra from any new exercise of the tenement. Instead, applying Das v Linden Mews Ltd [2002] EWCA Civ 590, it must be stated the internet to be used by Mithra actually falls within the specific terms provided in the initial grant because it is simply ancillary or supplementary to the utilization of the dominant land, and hence, the rule that has been forwarded in Harris v Flower, shall not work.

Applying Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd & Others [2018] EKSC 57, it should be specified that in the present times, the “mere recreation or amusement” of the ‘accommodation test’ (as forwarded in the case of Re Ellenborough Park (1956)) shall include the establishment of internet that would certainly be a beneficial portion in relation to the modern life, and it may also be specified that the common law would essentially support and endorse such technological structure that promote as well as encourage such facilities, instead of treating it as bereft of practical benefit or utility. Hence, the installation of the fiberoptic internet is essential to Mithra and not obstructing the use of the land by Angra.

Applying Easton v Isted (1903) 1 Ch. 405 CA, it must be mentioned that the right that has been claimed in the easement amid Mithra and Angra (regarding the right of the pathway), is adequately or sufficiently certain. It cannot be said to be a wide or vague right. Furthermore, applying the above said case, it can be stated that Mithra will not have any right in relation to uninterrupted light, although, Mithra will have a specific right in relation to the light that flows through the kitchen window. Hence, Angra cannot have the right of building the extension to his house as it is blocking the light to the kitchen of Mithra.

Applying Duke of Westminster v Guild [1985] QB 688, it can be said that the right of Mithra is not levying any positive burden upon Angra. Applying Rance v Elvin [1985] EWCA Civ 7, it should be said that no positive burden could be levied upon Angra, however, Angra has a specific responsibility in respect of Mithra as per any implied contract amidst them, which is for every purpose related to the utilization and enjoyment of the concerned property and not for other purposes, and hence, Angra shall be obligated to fulfill that specific responsibility. Therefore, Angra has to allow the establishment of the internet, which is for the utilization of the property.

Applying Copeland v Greenhalf [1952] Ch 488, it should be mentioned that the claim of the Mithra shall not be established in the form of an easement, if it is a claim to complete possession of the specific servient tenement of Angra. However, such is not the case. It can be specified that the right of Mithra is not wide, extensive or undefined in nature, and hence, would be the adequate subject matter of the specific easement.

Applying London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157, it can be stated that the specific right of Mithra, which has been granted in the easement, is such that it would not leave Angra without any kind of reasonable utilization of the land, and hence, it shall be considered to be an easement and not anything else.

Another applicable case in relation to the scenario that has been provided can be said to be the case quoted to be Moncrieff v Jamieson [2007] UKHL 42. Making application of the Moncrieff v Jamieson case, it should be said that the main thing that should be asked while considering the right or claim of Mithra for the easement is whether Angra (subject to reasonable exercise of the specific right) actually retains the possession as well as control in relation to the servient land. Therefore, it should be noted that Angra will possess complete right over the easement even after the installation of the fiberoptic internet.

The case cited as Virdi v Chana & Ors [2008] EWHC 2901 (Ch) can be applied in relation to the provided circumstance. Making application of the Virdi v Chana case, it can be said that Angra shall be considered to have retained the reasonable utilization of the land because he possessed the right to control and exercise other rights over the land even after the installation of the internet. Similarly, applying the case cited to be Kettel & Ors v Bloomfold Ltd [2012] EWHC 1422 (Ch), it should be stated that the right of Mithra in relation to the internet shall not deprive Angra of any reasonable utilization of the particular land because Angra will retain the right to exercise complete control in connection to that part of the land.

Making application of the case of Sweet v Sommer [2005] EWCA Civ 227, it can be said that in the case of any implied easement, it would be obvious from the particular nature of the house or property and the situations that any access would be actually necessary, or else the house would not be capable of a meaningful utilization in the absence of such easement. However, in the case of Mithra and Angra, Angra’s use of the old path for crossing Mirthra’s garden in order to reach the adjacent river is not for any necessary purpose, rather, it is just for fondness of fishing.

Conclusion

To conclude, Mithra shall have the right to use the internet as well as the right to receive light from the kitchen window, and Mithra would be responsible for proper utilization of the land by Angra.

Bevan, Chris. Land Law. Oxford University Press, 2018.

Bevan, Christopher. "Opening Pandora's box?: recreation pure and simple: easements in the Supreme Court: Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd." Conveyancer and Property Lawyer 83.1 (2019).

Bogusz, Barbara, and Roger Sexton. Complete Land Law: Text, Cases, and Materials. Complete, 2019.

Copeland v Greenhalf [1952] Ch 488.

Das v Linden Mews Ltd [2002] EWCA Civ 590.

Duke of Westminster v Guild [1985] QB 688.

Easton v Isted (1903) 1 Ch. 405 CA.

George, Martin, and Antonia Layard. Thompson's Modern Land Law. Oxford University Press, USA, 2019.

Greer, Sarah. Land Law Directions. Oxford University Press, 2018.

Harris v Flower (1904) 74 LJ Ch.

Jarman, Andrea. "Easements, servitude and human flourishing theory." Cornell Journal of Law and Public Policy 29.3 (2020): 101-121.

Kettel & Ors v Bloomfold Ltd [2012] EWHC 1422 (Ch).

Lees, Emma. The Principles of Land Law. Oxford University Press, 2020.

London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157.

MacKenzie, Judith-Anne. Textbook on land law. Oxford University Press, USA, 2020.

McFarlane, Ben, Nicholas Hopkins, and Sarah Nield. Land Law: Text, Cases and Materials. Oxford University Press, 2021.

Moncrieff v Jamieson [2007] UKHL 42.

Rance v Elvin [1985] EWCA Civ 7.

Re Ellenborough Park [1956] Ch 131.

Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd & Others [2018] EKSC 57.

Sweet v Sommer [2005] EWCA Civ 227.

tanfieldchambers.co.uk, 'What Is An Easement And How Are They Created And Used? - Tanfield Chambers' (Tanfield Chambers, 2022) <https://www.tanfieldchambers.co.uk/2016/02/16/what-is-an-easement-and-how-are-they-created-and-used/> accessed 18 March 2022.

uk.practicallaw, 'Easement | Practical Law' (Practical Law, 2022) <https://uk.practicallaw.thomsonreuters.com/0-202-2726?transitionType=Default&contextData=(sc.Default)&firstPage=true#:~:text=A%20right%20benefiting%20a%20piece,or%20run%20services%20over%20it.> accessed 18 March 2022.

Virdi v Chana & Ors [2008] EWHC 2901 (Ch).

Weissenberger, Glen, and Barbara McFarland. The Law of Premises Liability. LexisNexis, 2021.

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