Property Ervitude Easements

Answer both parts property law A.

"The category of servitude's and easements must alter and expand with the changes that take place in the circumstances of mankind." (Dyce v Lady James Hay (1852) 1 Macq 305 at 312 per Lord St. Leonard's) With reference to recent authority, discuss how the courts decide whether or not to alter and expand the categories of easements. B. Abe died recently, and he left the following gifts in his will:

i) 10,000 to Bart in trust for him to construct a monument to my late father and to pay for its upkeep;

ii) My three houses to my executors and trustees in trust to convey to my granddaughter, Lisa, whichever house she shall choose. The other two houses to my son, Homer;

iii) 100,000 to my trustees, trusting that they will give most of it to such of my nephews and nieces as they shall in their absolute discretion think fit;

iv) The residue of my estate is to be used for the maintenance of my dog, Billy, for as long as he shall live.

Advise Abe's executors and trustees, Patty and Selma, as to the validity of these dispositions

Part A

The law is not, as any practitioner or student will tell you, a fixed set of rules unchanging, clear and determinative. The law has a competing internal dynamic between the theoretical duty to provide a framework for people's legitimate expectations and its duty to keep in touch with current events. Law both responds to and informs people's practices and expectations. The rules surrounding easements are no exception to this general dynamic and given the important practical nature of easements which contribute to making a property habitable it is one where people's expectations are most heightened. Lord St Leonard said of easements:

'The category of servitude's and easements must alter and expand with the changes that take place in the circumstances of mankind'

We will analyse briefly the various categories of easements and how recent changes have altered or expanded those categories.

An Easement is a very nebulous concept and therefore leaves room for the courts to expand and contract the interpretation. Whilst it is stated that 'no one has ever succeeded in providing a satisfactory definition of an easement' the books seem to have settled on a fairly expansive set of basic criterion for the establishment of an easement:

(i)                  There must be a dominant and servient tenement

(ii)                The right must benefit the dominant tenement

(iii)               The dominant and servient tenement must be owned by separate persons

(iv)              The right must be capable of forming the subject matter of a grant

This work doesn't provide the canvas for a thorough explanation of the dimensions of the above concepts but must limit its scope to a few key areas where the boundaries are shifting in modern day easements.

One of the most interesting areas where the concept is expanding is in relation to easements which arise due to prescription. In relation vehicular easements there is a particularly interesting problem. Just over a decade ago there was almost no authority on this issue until the case of Hanning v. Top Deck Travel Group Limited which decided that given the criminality of driving over commons it would be wrong to grant a free prescriptive easement even if behaviour had been by continued over 20 years. This situation was obviously unsatisfactory for various reasons such as the sudden ability to extort ransom money from owners of dominant tenements by there servient tenement neighbours, therefore the government passed the Countryside & Rights of Way Act 2000, this allowed dominant tenement owners to buy for a fixed fee the easement after the 20 year prescriptive period had passed. In a constitutionally radical move the House of Lords has undermined this legislation in the case of Bakewell Management ltd v. Brandwood where they overturned Hanning and ignored the 'post-Hanning' legislation and held that given the prescriptive period had been achieved then a prescriptive easement over the commons was achieved. This issue of prescriptive easements seems to be given a much more expansive definition in recent times for example in the recent case of Midtown Ltd v. City of London Real property Co ltd the court held that a succession of leases over the prescriptive period which had no specific reservations about light were sufficient to create an easement right of light for that property. However the vehicular easements is the most interesting as the law is in a potentially unstable position and will probably need to be revisited. Prescriptive easements seem to be the biggest area of current developments

One of the more exciting developments of recent years was in City Developments Pty Ltd v. Registrar-General which held that a specific grant in favour of houses in a development to use land for 'private recreational purposes' was a valid easement. This apparently overturned a century of jurisprudence which stated a 'right of mere recreation and amusement cannot rank as an easement'

One of the most important pieces of legislation effect changes in the categories of easements in recent years is the Land Registration Act 2002. These have been criticised in that they make key changes to the 1925 Act system that existed previously. In particular we come back to problems surrounding the transfer of equitable or unregistered easements which may disappear on registration. These rules await case-law on the issue but it appears that there could be a risk specifically in relation to specific grants or deeds creating an easement when the servient tenement is transferred and equitable easements that aren't obvious to the buyer and wouldn't have been obvious on careful inspection of the property may also lapse under Schedule 3 of the LRA 2002. The meaning of these sections waits to be determined by judicial interpretation but it will create novel problems. The potential for vanishing easements under the new system is a serious problem that will require attention and the potentially blurred line between legal easements and equitable easements must be cleared because the categories have far from clear boundaries.

In conclusion the areas of easements that have shown the most expansion in recent years have been on the edge of the legal sphere. Certainly easement's that are registered and included in the conveyance are settled, rules and categories of negative and positive easements are fairly settled and rules on who and what are considered easements are fairly settled. It is unsurprising that it is prescriptive and equitable easements that were created more recently are the areas of contention. Their lack of treatment by parliament means that judges are developing principles in a haphazard and unorganised manner. Currently the Law Commission has a consultation paper on Easements which has pointed this out that there is no coherent policy behind their development. The above highlights the various areas within these fields that are causing problems particularly the Bakewell case.

Part B

Abe's Will - In answering these questions I have concentrated on the issues identified by each scenario and obviously assumed the other requisite conditions of execution, patty and Selma being proper trustees and other ancillary issues already existed.

(i)                 Bart's Monument

Whilst prima facie this may seem problematic this disposition is almost certainly valid as it rests on clear judicial precedent. The law of Trusts is premised on the fundamental belief that someone is holding something in trust for a specific beneficiary. As per Roxburgh J. in Re Astor S.T. :

'A trustee would not be expected to be subject to an equitable obligation unless there was somebody who could enforce a correlative equitable right, and the nature and extent of that could be worked out in proceedings for enforcement'

However in the case of the monument there is no obvious beneficiary who could enforce the trust and it would seem to fail on those grounds. The dicta of so many judges in these cases make it clear that whilst a 'trust may be created for the benefit of persons as cestuis que trust but not for a purpose or object unless the purpose or object be charitable. For a purpose or object cannot sue'. It is clear that the monument serves no charitable purpose and inevitably on strict doctrine approach it would fail but English law holds an anomalous concession to sentimental testamentary trusts such as this one in favour of Bart.

In the case of Re Hooper the previous 19^th century decision of Pirbright v. Salwey was upheld to the effect that although there is no beneficiary where a testator sets up a trust for the upkeep and maintenance of particular monuments, graves and tablets this will be given effect. However it must be noted that these cases are exceptional and are old authorities it is never safe to testate like this where there are no beneficiaries. Given the rule on perpetuities of trusts the clause will only be valid for 21 years and furthermore where it to go to court it is unclear whether the clause would stand following the dicta of Lord Evershed in Re Endacott that clearly shut the gate on adding any more categories and described such cases as Hooper as 'anomalous, exceptional and occasions when Homer nodded'.

(ii)               Property Trusts

This is the classic formulation of a trust we have clear trustees in Patty & Selma, clear beneficiaries in Homer & Lisa and it therefore ascribes to the basic formulation of a trust. I obviously assume that Homer is over 18 whereas Lisa is under 18. As long as this situation pertains then there will be resulting Trust. Paragraph 1 (1) of Schedule 1 of the Transfer of Land & Appointment of Trustees Act 1996 (TOLATA 1996) makes it clear that any disposition in which there is a conveyance to a minor automatically creates a Trust. However if Lisa is over 18 then there is no need for the trust as both would be competent to have the property conveyed to them and there being no conditions attached the Trust would expire.

However according to Paragraph 1 (2) of Schedule 1 where a trust is conveyed to an adult(s) and a minor(s) then what occurs is that the estate vests in the adult upon trust for the minor(s) and the adult(s) in question. Therefore this disposition would appear to create a trust which would be administered by Homer in favour of Homer and Lisa until Lisa was 18 and could choose the House she wanted. This is a perfectly valid Trust but as mentioned would be held in Trust by Homer as the adult concerned.

(iii)             Trust for Cash

Trustees can enjoy wide discretions and there is no problem with the validity of Trust clauses which include what are known as dispositive discretion i.e. the discretion over how to dispose of the property. In Gisborne v. Gisborne the testator setup a trust for his wife who was of unsound mind conferring a wide discretion on trustees 'in their discretion, and of their uncontrollable authority" to apply income for the maintenance and benefit of the testator's widow'. In reviewing the discretion Lord Cairns stated:

'Their discretion and authority, always supposing that there is no mala fides with regard to its exercise, is to be without check or control from any superior tribunal'

Therefore as long as Patty & Selma exercise their discretion without mala fides then their discretion is final. Abe seems also to have been clever in qualifying the discretion with the word 'absolute' in that discretion without qualification has been suggested by certain authorities to be of a lesser degree for example in Re Hodges the judge felt that an unqualified discretion entitled the judge to substitute his judgement for that of the trustee. The use of the word absolute was specifically considered in the case of Tempest v. Lord Camoys and it was held to confer Gisborne type discretion only to be overcome by bad faith. Asides from this issue there seems no reason why this would not be given effect as a valid trust.

(iv)             The Dog's Trust

This category would seem to fail for the same reasons that we covered in relation to Bart's Monument in that the Law of Trusts usually requires that there be a beneficiary who can act as enforcer against the trustee. This relationship doesn't technically pertain between Patty & Selma and Billy the dog. Billy would be incapable of taking legal action and therefore this would seem to be invalid. However, Abe has either been wise or lucky as one of the few other exceptions is in relation to Pet's.

In the 19^th Century case of Re Dean a man left a bequest of 750 pa to his horses and hounds so long as they may live. Whilst the issue of 'lives in being' was concerned this has been discredited by 20^th century case such as Re Kelly but as it is covered by the perpetuity period and given most household pets will not outlive the 21 year period then the trust would be valid for the 21 year period. Therefore Abe's trust fund for his dog would be held to be valid.

Bibliography

Books

Dixon, Martin Principles of Land Law Cavendish / 2002 / 4^th ed.

Gaunt, Jonathan & Gale on Easements Sweet & Maxwell / 2002 /

Morgan, Paul 17^th ed.

Jackson, Paul The Law of Easements & Profits Butterworths / 1978

MacKenzie, J-A & Textbook on land Law Blackstone / 1999 / 8^th ed.

Phillips, Mary

Articles

Barnsley, DG Equitable Easements - 60 years on 1999 LQR 89

Greed, John Equitable Easements & The Pitiless 1999 ConvPL 304

Purchaser

Hayton, David Developing The Obligation Characteristic 2001 LQR 117

Of The Trust

Kenny, Philip Vanishing Easements in Registered Land 2003 ConvPL

Templeman, Michael Vehicular Easements over Commons 2005 LQR 199

Online

Parry, N Control of Trustee Discretion Dyce v. Lady James Hay (1852) 1 Macq 305 at 312

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