Land - Easement & Restrictive Covenants (1)

1. Tim owns a two-storey house with a garden at the back and a garage at the side. In 1999 he converted the house into two flats. He occupied the ground floor flat himself and he let the upstairs flat to Bob on a two-year lease. In 2000 Bob asked Tim if he could use the garage for his car. Tim agreed, as he had no car himself at the time, and refused to accept any payment. Tim also allowed Bob to use the swimming-pool in the garden and to fix a small notice near the front door advertising Bob’s business. In 2001 Tim entered into a written agreement to let the upstairs flat to Bob for a further three years. Tim and Bob have now quarreled. Tim has removed the notice and refused to allow Bob to use either the pool or the garage (which Tim wants to use for his new motor-bike).
Discuss.

Nature of Bob’s right
- If it is bare licence, it is revocable
- If it is easement, it is enforceable against Tim
- The questions to ask are:
1. If these rights can be easement at all
2. If yes, how has Bob obtained it?

Garage
- Apply Re Ellenborough Park
- Apply Batchelor v Marlow (2001): Right to park and right to store claimed as easement
- Apply Copeland v Greenhalf: Storing wheelwright’s repair vehicles on land claimed as an easement
- Apply Saeed v Plustrade (2001): Whether right to park could amount to an easement
Note: no case on garage easement
- How to draw a line between easement and exclusive possession? It is a matter of degree of the right, and the size of land concerned. In this case, if exclusive possession is granted, it will be too much a right

Swimming pool
- There is no swimming pool easement because:
(i) Swimming pool does not accommodate dominant tenenment
(ii) Use of the swimming pool is a mere right of entertainment/amusement, not an attribute of home ownership for normal enjoyment of land

Advertisement sign
- It can be an easement
- Apply Re Webb’s lease
- However, we are not sure where the business that is advertised is: If the business is at the upstairs flat where Bob occupied, there is easement because the sign accommodates dominant tenement; if the business is elsewhere, there is no easement

Easement effectively acquired?
(i) There is no express grant of easement
(ii) There is no implied grant
(iii) LPA 1925 s62: General words implied in conveyance – rights enjoyed with the land at the time of conveyance can be easement; licence permission can then be converted into property right, i.e. easement
- For easement to exist, it requires diversity occupation serviant & dominant tenement
- Apply International Tea Stores v Hobbs: Bare licence to cross the land becomes easement
- In this question, there is conveyance (2-year lease and then written agreement to let the upstairs flat to Bob for a further three years – legal informal lease)
- No express exclusion of s62
- Tim will be restrained from interfering Bob’s right

Size of garage- If there is only 1 garage, Bob should know licence is temporary and s62 doesn’t apply