Easy Easements

Easy Easements - Part 1

This two-part series is about four important cases that have been decided over the past year relating to the acquisition of easements. This Part 1 highlights two cases which explain key principles that can dictate whether or not an easement exists.

Part 2 will highlight two cases that provide guidance on how to obtain (or avoid a neighbour obtaining) easements by prescription, which can result from the continued exercise, by an occupier of land, of a right over neighbouring land for twenty consecutive years.

Le Cuona v Big Apple Marketing Limited [2017] Chancery Division

As a preliminary point, this case provides a helpful reminder that a fork is a fork even if the manufacturer insists that it is a spade - which is a crude paraphrasing of part of Lord Templeman's famous judgment in the 1985 case of Street v Mountford.

Street v Mountford was a case about a Mr Street who granted Mrs Mountford a right to occupy two rooms in his building. Mr Street thought that if he referred to the right to occupy in the document as a "licence" - as opposed to a "tenancy" - and to the sum that Mrs Mountford owed as a "licence fee" - as opposed to "rent" - this would prevent the document from being considered in law to be a "tenancy" and he would therefore not be required to comply with legislation that may have reduced the level of "rent" he would have been able to charge. Lord Templeman's comments shooting down Mr Street's attempt were, "The manufacture of a five pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade." In other words, substance prevails over form - even where a right to occupy is referred to as a licence, if it looks like a tenancy, smells like a tenancy and acts like a tenancy, it is a tenancy.

Fast forward 32 years to April this year and a similar principle was at issue in Le Cuona v Big Apple Marketing Limited. The issue was whether or not a right to park a car was, on the specific facts of the case, an easement or a lease. Had the right been construed to be a lease, the right would have been void as the deed had not been registered at the Land Registry. The deed was entitled "lease of parking rights", it referred to the landowners as "Landlord" and "Tenant" and it included various other standard lease provisions (such as a service charge and a provision for quiet enjoyment). Nevertheless, the court...