‘The case of Edwards v Kumarasamy has now seen a final decision from the Supreme Court with the Court overturning the decision of the Court of Appeal in two key areas.’
Nearly Legal, 14th July 2016
Source: www.nearlylegal.co.uk
Winterburn and another v Bennett and another [2016] EWCA Civ 482
‘The claimant owners of a fish and chip shop claimed as a result of use over a number of years to have acquired by prescription the right for themselves and others using their premises to park on land comprising part of a car park belonging to the defendants. The defendants’ premises, which were next to the car park, had been used as a club and users of those premises used the car park. The entrance to the car park was adjacent to the claimants’ shop. The claimants had operated the shop from about 1987 or 1988 until 2012. Throughout that time, their suppliers had up to nine times a week pulled off the road into the disputed part of the car park and parked there for long enough to make their deliveries, and their customers had parked on the disputed land while they bought their fish and chips. On the whole that use of part of the car park did not interfere with the s’ operations but over a seven-year period there were 12 to 15 occasions on which the defendants asserted ownership of the disputed land, and, expressly or impliedly, asserted that the claimants and their suppliers and customers had no right to park on it. At all times until 2007 there was a sign attached to the wall of the building on one side of the entranceway to the car park, erected on behalf of the defendants, stating “Private car park. For the use of Club patrons only. By order of the Committee”, and a similar sign in the window of the club premises. The claimants claimed that their right to park, acquired by prescription by “lost modern grant”, had been established by their 20 years’ uninterrupted user “as of right”, namely, without force, without secrecy and without permission. The First-tier Tribunal found that, although the two signs were clearly visible, they were insufficient to prevent the claimants from acquiring the claimed parking rights. The Upper Tribunal allowed the defendants’ appeal, reversing that finding.’
WLR Daily, 25th May 2016
Source: www.iclr.co.uk
‘An easement is appurtenant to land and not a personal right of the owner. As such, the easement can be exercised by anyone who is entitled to use the land and it can be enforced by anyone in possession of the land.’
Tanfield Chambers, 31st May 2016
Source: www.tanfieldchambers.co.uk
‘Nuisance cases are tricky. There is a lot to establish for causation, for liability and for loss. This case is perhaps a cautionary tale about the need to be constantly alert to changes in the facts and expert opinion as they emerge over the course of the case. It is also an object example of litigation between neighbours that got completely, astonishingly, out of hand in relation to the initial objectives.’
Nearly Legal, 25th May 2016
Source: www.nearlylegal.co.uk
‘Imagine a farmhouse landlocked on all sides by fields, half a mile from the nearest road. The farmhouse and the fields are in separate ownership. How does the owner of the farmhouse get to the road? The answer to be found in the law of easements.’
Tanfield Chambers, 16th February 2016
Source: www.tanfieldchambers.co.uk
‘There was no legal impediment to a right of recreation taking effect as an easement, provided that the intention to grant an easement, as opposed to a merely personal right, was evident on the proper construction of the grant construed in the light of the material surrounding circumstances.’
WLR Daily, 7th December 2015
Source: www.iclr.co.uk
‘Mr Edwards rented a second floor flat from Mr Kumarasamy. Mr K was the leaseholder of that flat, but did not own any other part of the property. Mr K’s lease granted him “the right to use on foot the entrance hall, lift and staircases giving access to the flat; the right to use an access road and parking space and the right to use the Bin Store (which is part of the Communal Areas as defined) and other facilities provided by the landlord. Regulations forming part of the lease in fact require all domestic rubbish to be placed in the Bin Store.”’
NearlyLegal, 28th January 2015
Source: www.nearlylegal.co.uk
“Easements to light are one of the oldest property rights and the principles are very entrenched. However a spate of controversial cases over recent years and general feeling of panic among developers has encouraged the Law Commission to investigate:
‘whether the law by which rights to light are acquired and enforced provides an appropriate balance between the important interests of landowners and the need to facilitate the appropriate development of land.’
This article provides a recap of the current law in relation to rights to light and touch upon some of the problems faced by developers and landowners alike.”
Hardwicke Chambers, 7th June 2012
Source: www.hardwicke.co.uk
Chaudhary v Yavuz [2011] EWCA Civ 1314; [2011] WLR (D) 336
“In the context of a sale of property, great care would be required before one could conclude that it was ‘unconscionable’ for a purchaser to deny a right whose existence he could have ascertained merely by inspecting the property.”
WLR Daily, 22nd November 2011
Source: www.lawreports.co.uk
“In this report, we make recommendations to simplify, modernise and enhance the law of easements, covenants and profits à prendre. These rights are essential to the effective use of land and are relied upon by a significant proportion of property owners in England and Wales.”
Law Commission, 8th June 2011
Source: www.justice.gov.uk/lawcommission
Waterman and Another v Boyle and Another
Court of Appeal
“An express right to park two vehicles at a property did not imply a further right to park additional vehicles.”
The Times, 30th March 2009
Source: www.timesonline.co.uk
Please note the Times Law Reports are only available free on Times Online for 21 days from the date of publication.
Waterman and another v Boyle and another [2009] EWCA Civ 115; [2009] WLR (D) 76
“Where there was an express right to park attaching to a property it was most unlikely that a further right to park would arise by implication.”
WLR Daily, 2nd March 2009
Source: www.lawreports.co.uk
Please note once a case has been fully reported in one of the ICLR series the corresponding WLR Daily summary is removed.
“A senior appeal court judge livened up a hearing over a boundary dispute yesterday by quoting from Shakespeare.”
The Guardian, 19th April 2008
Source: www.guardian.co.uk
“On 28 March 2008 the Law Commission published a consultation paper provisionally proposing wide-ranging reform of the law governing easements, covenants and profits à prendre.”
Law Commission, 28th March 2008
Source: www.lawcom.gov.uk
No private right of way possible
Housden and Another v. Conservators of Wimbledon and Putney Commons
Chancery Division
“A prescriptive right based on 40 years of use could not be acquired under section 2 of the Prescription Act 1832 where the servient owners had powers derived from a statute that rendered it unlawful for them to grant the right claimed.”
The Times, 4th June 2007
Source: www.timesonline.co.uk
Please note the Times Law Reports are only available free on Times Online for 21 days from the date of publication.
Housden and another v. the Conservators of Wimbledon and Putney Commons
“Where the capacity or power of the servient owner derived from a statute which rendered it unlawful for him to grant a particular easement no such right could be acquired by prescription under s 2 of the Prescription Act 1832.”
WLR Daily, 17th May 2007
Source: www.lawreports.co.uk
Please note once a case has been fully reported in one of the ICLR series the corresponding WLR Daily summary is removed.
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