Land - Easement & Restrictive Covenants (2)

3. For many years Oliver was the registered owner of two adjoining terraced houses (house A and house B). Oliver lived in house A and his mother lived in house B. Oliver stored some of his belongings in a shed on house B and he fixed a board on the front wall of house B advertising his business. His mother used to hang her washing on a line over the yard of house A and her television aerial was attached to the chimney of house A. In 1999 Oliver’s mother died and he sold house B to Sam. In 2001 he sold house A to Tim. Sam has removed the board and refuses to allow Tim to use the shed. Tim has taken down the aerial and washing line.
Discuss.

Oliver’s right in House B?
- 1999 mom died, Oliver sold House B to Sam
- Oliver unlikely to be able to keep the shed and board unless he expressly reserves his rights
- Court is reluctant to imply easement for seller of land unless:
(i) It is easement of necessity
(ii) It is commonly-intended easement
- Apply Re Webb’s lease

Sam’s right in House A?
- Washing line could be an easement
- TV aerial is mere entertainment or amusement? If yes, then there is no easement. If it supports the enjoyment of land, it could be an easement
- There is no express grant over House A
- Courts will imply easement for buyer of land:
(i) Easement of necessity
(ii) Commonly-intended easement
(iii) Rights are continuous & apparent; are for enjoyment of land or with land; and used by common owner at conveyance
- If s62 applies: capable of converting licence to easement
-> Oliver selling House B to Sam is a conveyance, and this conveyance arguably imply washing line & TV aerial as easement: the rights do not have to enjoyed at the day of conveyance
-> According to Dixon Martin, if the rights are continuous & apparent, there is no need of diversity of occupation for s62 to apply
-> On the other hand, CA favour diversity of occupation
- Conclusion:
(i) Sam has easement based on s62 and bind O
(ii) Oliver doesn’t have easement in House B
(iii) Tim doesn’t have easement in House B

BUT will Sam bind Tim?
- For unregistered land, registered charges at LCA bind the whole world
- For registered land,
(i) 1925 LRA legal easement s70(1)(a): overriding interest
(ii) 2002 LRA Schedule 3 para 3: legal easement interest overridden by implication of law, by s62 or by prescription
=> This does not apply to expressly granted easement
=> This does not apply if purchaser has no knowledge of right; rights not obvious; rights not used in previous year
=> Exceptions in para 3 do not apply for the 1st 3 years of Schedule 3 comes into force* Equitable interest, since 2002 LRA, has to be registered: equitable interest can no longer be overriding interest