What is a legal easement?
Posted on 28th March 2019
So, as a reminder, an Easement is a right over a property which benefits another property (you can read more about them here) and an easement may be granted to continue indefinitely, or for a fixed period of time. Whereas a lease is a contract by which one party conveys land, property services, etc. to another person for a specified period of time, usually in return for payment (you can read more about them here). To confuse matters a little more there is also such a thing called a lease of easements. A lease of easements occurs when someone has a lease of land which they then adapt to grant a lease of rights, but interpreting such a document can create difficulty because sometimes it is not clear whether a lease of easements is granting a lease or creating an easement for a set number of years.
This area of law can be so confusing that the High Court recently had to answer the question in the case of De La Cuona v Big Apple Marketing Limited.
Facts of the Case:
Big Apple Marketing Limited has the benefit of a lease of easements allowing them to park two cars in a small car park which was owned by De La Cuona. De La Cuona argued that the lease of easements created a lease that was void for non-registration at the Land Registry, and even if the documents created an easement, a right to park was not capable of being an easement. If De La Cuona was right then it would mean that Big Apple Marketing Limited no longer had a right to park on De La Cuona’s land.
The Judges established that whilst the lease of easements used a lot of terms that were consistent with the document being a lease, such as the words ‘tenant’ and ‘landlord’, it created a rent reserve and contained restrictions on what could be done on the land. All of those things were items you would expect to find in a lease, so the document was, in fact, an easement. This is because there were crucial provisions that the document only demised the right to use parking spaces and not specific spaces. Big Apple Marketing Limited did not have exclusive possession of them and De La Cuona could, if they chose to, relocate the spaces for Big Apple Marketing Limited to use. Furthermore, the rights were expressly stated to be appurtenant to the land owned by Big Apple Marketing Limited which is another indication of an easement.
Looking back a historical cases, the Courts have always been reluctant to hold that a right to park can be an easement, however recently (and this is the hot gossip) a number of cases are beginning to uphold the principle that a right to park can in some cases be an easement. The issue is whether the grant of a right to park leaves the grantor without any reasonable use of the land over which the rights are granted (this is known as the Ouster Principle – don’t worry they’ll be another blog coming through on that soon!).
It is fairly easy to draft an easement for a term of years as if it were a lease of property. In this case the Big Apple Marketing Limited was lucky the judge interpreted the document as an easement but it is never a good sign when you have to take a matter to court to establish the legal meaning of a document.
Problems can arise where the grant of an easement is made in the form of a lease using terms like ‘landlord’ and ‘tenant’. Even where the document creates easements, the position obligations may not bind future successors in title as the parties will no long be the landlord and tenant.
Getting the terms wrong in these such documents can be seriously costly, so make sure you contact MG Legal whenever you need legal documents drafting. Ensure that drafting is done correctly in the first place to prevent future issues.
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