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• License

  A personal interest
• Lease

  A property interest
• Leases and Licenses: Outline

  • The lease / license distinction
  • Street v Mountford (1985)
  • The definition of a lease
  • Antoniades v Villiers (1990)
  • AG Securities v Vaughan (1990)
  • Sharing residence
  • Westminster City Council v Clarke (1992)
  • Bruton v London Quadrant Housing (1999)
  • Exceptional cases
  • Templemania
• Ownership, possession, property, land

  A set of relationships, ideas, and material things
• Gray & Gray: key ideas

  • Fragility of concept of property
  • Relationality of property
  • Power and property
  • 'the proper order of things'
  • Relative both in practice and as an idea
  • Degrees of Property – a slippery concept
• Property as

  • Fact
  • Right
  • Responsibility
• Property as Fact

  • Anti-intellectual streak to property law
  • The propriety of property
  • Emotional security & sovereignty
  • the potency of the behavioural connotations of property
  • the externally verifiable modalities of possessory control
• Property as right

  • A complex calculus of carefully calibrated estates and interests in land
  • Not necessarily 'visible' or 'material'
  • One step removed from estate/land
  • Ownership of a right in/over physical property
  • An abstract right
• Property as responsibility

  • Elements of utility characterizing a relationship to land
  • Held in balance
  • Not so much a bundle of rights as a bundle of individuated elements of land-based utility
  • A state-directed responsibility to contribute to the collective exploitation of land resources for communal benefit (Locke?)
  • Less a right, more a restraint (or obligation)
  • Not the arrogance of right, but the obligation of civic responsibility and community
• License

  • A permission
  • A temporary permission
  • A conditional permission
  • From the Latin precario
• A license is precarious

  • It may be contractual
  • It can be withdrawn
  • It does not bind third parties
  • And it poses no threat whatsoever to those who might acquire an interest in the land
• Licences to use/occupy property

  • To park over the holidays on my neighbour's land
  • To stay with my parents over the pandemic
  • To shop
  • To grow vegetables on an allotment
  • To walk on open parkland
• Lease

  • A grant of land
  • For a term
  • At a rent - although this may no longer be required
  • With exclusive possession of the land
• Can be positive i.e. the right to do something on someone’s land, or negative i.e. the right to stop someone from doing something on your land
• Lord Templemen in Re Ellenborough defines what a lease is
• Ownership - DADS
• Dads- A dominant and servient tenement
• dAds - Has to accomodate the dominate tenement, that is, be connected with its enjoyment and for its benefit
• daDs - the dominant and servient tenements must be different persons
• dadS - the right claimed must be capable of forming the subjectffimater of a grant
• A dominant tenement: a tenement which benefits from the easement
• A servient tenement: a tenement which accommodates the dominant tenement. i.e. which is subject to the easement

  Ackroyd v Smith
• Cresswell: when you create an easement it is annexed to the land when created, the means there must be land to attach to. There must be a dominant and servient land.
• The easement must be for the benefit of the land, rather than of benefit to a specific person
• Dominant and servient owners must be different persons. It would make little sense for someone to try to assert a right against themselves
• The right claimed must be capable of forming the subject matter of a grant

  Six suffipoints: Must be a capable grantor, There must be a capable grantee, The right must be sufficiently definte, The right must fall within the general nature of the rights traditionally recognised as easements, The right must not impose any positive burden on the serivant owner, The right must not deprive the servient owner of all beneficial proprietorship
• An express grant or reservation of a right: Must be created out of a legal estate, It requires execution by deed (s52(1) Law of Property Act ), It is also required to be registered to take effect at law (s27(2)(d) Land Registration act)
• How to create an expressed easement (EXAM QUESTION)

  S52 Law of Property Act 1925 – set out requirement of the creation of Express Easement (as well as Land Registration Act)

  -            Agreement in writing

  -            Grantor’s capacity

  -            Intent

  -            Registration
• Express creation

  On registration, the benefit of the easement is included in the title register of the dominant land

  Notice of the burden is entered in the title register of the servient land (s38 LRA  2002)
• In absence of express words, an easement can be implied into a deed of transferee. They are always legal
• Overriding interests:

  Bind a purchaser without registration

  So long as Sch3 LRA 2002 criteria/condition are met
• Implied creation

  There are four implied acquisitions:

  The doctrine of necessity

  The doctrine by common intention

  The doctrine of Wheeldon v Burrows

  The Doctrine in LPA 1925 s62
• The Doctorine of necessity

  Without easement, the land would not be able to be used. 

  This is strictly construed

  ·        Must be of absolute necessity (Dodd v Burchell)

  ·        Not convenience, or “reasonable” necessity

   

  Transfer of a “landlocked” plot is a good example
• The doctrine of common intention is a legal principle that infers the intentions of parties in property transactions based on their conduct and circumstances, aiming to achieve fairness and equity in resolving disputes.
• EG Wong v Beaumont Property Trust ltd

  Wong was a leaseholder of a basement restaurant

    Beaumont held  tenancy in upstairs plot

    The lease (predating both parties) contained a covenant for the restaurant premises to comply with public health regulations

    Only way for Wong to do that was by installing a ventilation system over Beaumont’s premises

  Court required Beaumont to allow Wong to construct ventilation system
• The rule in Wheelon v Burrows

  It applies only to acts which were:

  1. Continuous and apparent

  •        Ie enjoyed over time and discoverable

  •        Reasonably necessary for enjoyment

  •        Less than absolute necessary and linked to the first criterion

  1. Exercised prior to and at date of transfer

  •        No implied grant of an easement can occur use had ceased long before relevant conveyance
• s62 LPA 1925

  1. Implied easements under Section 62 are necessary for the reasonable enjoyment of the land sold.
  2. Necessity for the easement is determined based on the circumstances of each case, considering whether alternative access is available.
  3. The extent of the implied easement is limited to what is reasonably necessary for the reasonable enjoyment of the land sold.

  4. Easements implied under Section 62 are legally binding on both the transferor and the transferee, obligating the transferor to allow the exercise of implied rights and entitling the transferee to use the easement accordingly
• Similarities:(1) Both look at prior use of the servient land creating easement on basis of prior use(2) Often pleaded on the same facts (arise on same facts)
• Differences:(1) S 62 is especially restricted by the need for there to be a conveyance of a legal estate over a DL(2) Wheeldon requires the use of the right to be necessary for the reasonable enjoyment of the land, so that it is more restrictive
• Prescription act 1832

  •        “One of the worst drafter on the statute book” (LC)

  •        “Self-evident eyesore” (Gray and Gray)

  •        No right exists until an action is brought

  •        Will only exist if user for a period “next before action”