‘Derogation from grant’ and the conclusive nature of conveyances were judicially clarified when a landowner divided his estate into two distinct plots before individually auctioning them to separate purchasers under identical contracts, whereupon litigation commenced over their right to enjoy both privacy and right to light.
With a brick wall dividing the two plots, the second sale left the respondent with a brick building situated fairly close to the wall with three windows facing the first plot but withspace enough to allow natural light to pass through them, and while both contracts mirrored one another, neither included any express reservations aside from a vague stipulation that the first lot was subject to a favourable right for the purchasers and occupiers of the second plot for a indeterminable period.
Roughly five years later the appellant erected a fence obscuring the respondent’s view when using his workshop, which prompted his demolition of the obstruction on principle that when taking ownership of the property it was under an implied easement inherited from the vendor and therefore lawfully enforceable, however this resulted in litigation in which the court noted how the vendor had failed to include any express reservation to the two parties and so awarded in favour of the appellant and ordered an injunction to prevent further trespasses.
Challenged in the Court of Appeal, the Court merely upheld the previous judgment on grounds that should English law adopt a view that implied rights and reservations were automatic to a conveyance, the rights of ownership and peaceful use and enjoyment of land would be violated beyond all reason, while reminding the parties that:
“[N]o implication can be made of a reservation of an easement to the grantor, although there may be an implication of a grant to the grantee.”
As I move ever closer to the completion of this ‘epic’ case law collection, I am happy to say that I have now finished writing the property law section, and while it’s one of the shorter chapters, the cases studied have been nothing short of diverse, which made a refreshing change from the often narrow English property law cases I have become so accustomed to reading in the past, and during my time as an undergraduate.
All mumblings aside, below is the final list, and I can only hope that you enjoy reading them as much as I enjoyed studying them over the previous several weeks, while for me it’s now time to get started on the final ‘tort law’ discipline.
Conversion of seemingly abandoned property is not without the law, however there are inherent differences as to how best to remove or despatch such property, while considering the enduring proprietary rights of the original owners. In a matter concerning a number of goods of varying value, the claimants sought damages for loss, when after giving ample notice for their removal, the recent freehold purchasers took steps to enforce their rights to enjoyment of the land now owned.
Under a conveyance dated May 2 1994, the respondents purchased land from the claimant’s mother, on condition that time be given for the removal of specific items owned by her son and daughter-in law. With an express threshold of July 31 1994 for all items outstanding, the claimants removed a portion of the items listed, after which no attempts were made to recover the remainder.
Noted within the conveyance was express mention that:
“Any items remaining after deadline shall be considered abandoned and can be disposed of in discretion by the purchaser who will exercise prudent discretion.”
And so upon expiration of the agreed threshold, the respondents proceeded to both remove and where possible, sell the items either privately for profit, or by way of scrap, with the remaining few items kept under secure storage.
At the point of litigation, the claimants argued that unless stated, the items both sold and left in situ, were still under ownership, and that no acquirement of title has succeeded, despite no attempts to remove them beyond the period stated. With reference to the principle of abandonment, the court observed the academic position adopted in ‘The Abandonment and Recaption of Chattels’ (1994) by Lee Aitkin, in which it reads:
“The act of abandonment, in Pollock’s terms, confers a revocable licence which is only terminated when a subsequent possessor manifests dominion over the chattel with the intention of possessing it to the exclusion of others, including the former possessor.”
However in ‘Is Divesting Abandonment Possible at Common Law’ (1984) by A.H. Hudson, it was argued that abandonment through intention was sufficient enough to warrant acquisition by those taking new ownership, (otherwise known as ‘divesting abandonment’) which in effect, created further confusion as to how best to ascertain when property has been lawfully abandoned.
In Canada (Attorney General) v. Brock, the Canadian Supreme Court had earlier turned to American jurisprudence when adhering that once relinquished of title, such property remains abandoned until appropriated by those intending to take ownership, while ‘Black’s Law Dictionary’ (1979) clarified how:
“Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect.”
With particular regard to the case in hand, McCutcheon v. Lightfoot had enabled the Supreme Court of Canada to rule how:
“[A]bandonment of a chattel may be inferred in circumstances where an owner fails to remove his or her chattels within a reasonable time after receiving notice from the proprietor demanding their removal. In such circumstances, the destruction, consumption or sale of the chattels would not constitute a conversion thereof.”
While in Addison on Torts (7th Edn), it was equally argued that:
“A man cannot be made a bailee of goods against his will; and, therefore, if things are left at his house, or upon his land, without any consent or agreement on his part to take charge of them, he is not thereby made a bailee of them.”
Thus with close examination of the rights afforded both parties, the court held that the items retained and sold or disposed of, were subject to five distinct groups, within which three were estopped from right of claim, damages for conversion were awarded at $300 for the item sold privately and the final group remained abandoned unless agreed otherwise.
The conveyance of land with restrictive covenants is not uncommon within property law, however when the safeguard designed to protect the needs of the vendor becomes central to his anguish, it becomes clear that the attached principles have become somewhat misused.
In a matter concerning the part-sale of an orchard by a farmer, the respondent entered into the purchase on the understanding that at no point was the road running between the two plots previously owned, to exceed the height beyond that of the section retained, as to do otherwise would impact upon the farmer’s ability to harvest his remaining plot.
After ignoring the covenant, the respondent began resurfacing the road to a height that did in fact exceed the permissions granted, thus prompting the appellant to protest both orally and by letter. When the work continued and his obvious displeasure went unheard, the appellant issued a writ in pursuit of a mandatory injunction, which would result in the removal of all works undertaken at cost to the respondent.
In the first hearing, the judge adopted the unorthodox position of taking two negatives in order to create a positive. This was executed through an injunction, while explaining that:
(i) The respondent was to modify the road so as to benefit the appellant, rather than to remove it outright, after having spent around £1400 on its construction, before paying the appellant £1062 in special damages for the harm caused to date.
(ii) The mandatory injunction was to remain ineffective for a period of three years, while the respondent set about altering the road’s layout, which itself required agreement by the appellant to trespass onto his land in order to carry out the work.
(iii) That consultation between the two parties would continue throughout this period, and that should the appellant refuse to consent to the needs of the respondent, the respondent would be granted sufficient argument so as to discharge the injunction entirely.
Upon immediate appeal, the appellant argued that the judge had erred in law when creating an injunction that rendered the breach of covenant void, that requirement to consent to the work would result in a trespass and that such an impingement and modification would cause the appellant to suffer both personally and financially, as his own orchard would be compromised during the alterations.
With consideration of the judge’s genuine wish to improve upon an already damaging situation, the Court held that when refusing to enforce the injunction with immediate effect, the court had failed to properly address the purpose of both the covenant and the injunction in favour of an outcome serving only the needs of the breaching party.
As can be traced back through the historic case law surrounding easements, there has been much dispute as to exactly what constitutes such a privilege; and so in Re Ellenborough Park, a generosity of scope was favourably agreed upon and the principle further refined.
When the considerate nature of the original owner of Ellenborough Park (itself no more than an expansive parcel of land) bestowed conditional rights upon the future freeholders of property encircling it, those privileges allowed exclusive enjoyment of the space and fresh air afforded them, yet the vendor had no idea how many years later, that same kindness of spirit would be challenged by those succeeding him.
For almost 100 years, the owners of the chosen properties had enjoyed uninterrupted peaceful use, until the second world war brought with it, the temporary military occupation of both the park and the homes built around it. After returning the houses back to their current owners (along with suitable compensation for their use), it was decided by the trustees of Ellenborough Park, that continued access to the gardens would no longer be accepted, and that under the terms of the original conveyance, no such easements had ever been put into effect.
Under the general terms prescribed by common law, there are a number of criteria that need to be met for an easement to exist. These critical elements include the principles that those assigned the granting of an easement must take it on the understanding that use of such a covenant relies upon utility and benefit from the right, and that benefit of the easement must derive from the granting of such a right. Because Ellenborough Park was cosmetically different from most commonly prescribed easements, it was argued that the mere capacity to wander around freely upon a large plot of land (albeit subject to expressly detailed maintenance contributions) amounted to no more than a ‘jus spatiandi’, which is a phrase typically assigned to public parks and recreational areas requiring little more than careful observation of the rules associated with their use.
In the first hearing, the judge found in favour of the defendants, and so when further considered under appeal, an in-depth examination of the founding conveyance revealed very succinct terminology as to support and endorse the intentions of the estate owner, in that he had not only established by definition the presence of easements to the freeholders, but that such consideration had been expressly granted by way of the deed’s construction. This decision has since proven instrumental to the variances in the physical representation of easements, and the reinterpretation of covenants provided for by way of grant.