Real Property Update: November 2017

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Editors Comment

Kerry Bretherton QC

In this edition, I consider whether a right to park can be an easement. This issue has been the subject of some interesting discussions during a series of talks on ‘parking law’ which my colleague Gemma de Cordova and I have given recently.  The talk covers a range of other matters relevant to parking, and if you are interested hearing it please contact Billy Forecast.

I propose to depart from my usual practice of including comments from the directories about the author of the article as it would be excruciating to do so in relation to myself, and, instead focus upon the contribution from the junior member of chambers. We have been delighted that Sam Madge-Wyld joined Chambers this year, who is rightly described by Chambers & Partners as “very technically able” “extremely confident and very impressive” and by Legal 500 as “A great barrister all round…”. Sam considers five real property cases which were reported in October 2017.

Can a right to park be an easement?

Parking is a hot topic! There have been an extraordinary number of cases involving parking disputes over the last few decades, almost certainly because the absence of a right to park can substantially reduce the value of both commercial and residential land. 

In Copeland v Greenhalf [1952] 1 Ch. 488 Upjohn J considered that a claim which amounted to the whole beneficial use of land was not an easement and, to succeed, must amount to a successful claim for possession by reason of adverse possession.  As pointed out by Lord Neuberger in Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 W.L.R. 2620 at §135 this has been relied upon in a number of cases to suggest that the right to park cannot be an easement.  In London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 the Deputy Judge rejected an argument that Copeland v Greenhalf was wrongly decided and his decision was affirmed on appeal at [1994] 1 W.L.R. 31.

Read the full article here

November Case Summaries

Doberman v Watson
High Court, Chancery division

The claimants were the freehold owners of land subject to a restrictive covenant prohibiting the erection of more than one dwelling-house on the land. The claimants wished to build another house on their land.   

Read the full summary here.

Fitzpatrick v Spencer 
High Court, Chancery Division

The claimants purchased land, containing garages and a storage shed, to the rear of a Victorian house, part of which was owned by the defendants. A drain ran from the claimants’ land into the sewerage system under the Victorian house. The claimants demolished the outbuildings and built two new houses on the land.  

Read the full summary here.

Pickard v Constable
[2017] EWHC 2475 (Ch)

Mrs Pauline Constable was adjudged bankrupt. Her trustees in bankruptcy applied for an order for the sale of her home that she owned jointly with her husband (Mr Constable). Mr Constable, who was 65, adduced evidence that he suffered from myasthenia gravis, which made him unable to walk without the use of a zimmer frame, and that he had insufficient funds to purchase or rent an alternative property. A district judge granted the trustees’ application, but postponed the order for possession until Mr Constable had either died or permanently vacated the property.

Read the full summary here.

Burrows Investment Ltd v Ward Homes Ltd 
[2017] EWCA Civ 1577

In 2007, Burrows Investment Ltd (“Burrows”) sold Ward Homes Ltd (“Ward”) a plot of land with planning permission for the development of residential units. The sale agreement prohibited Ward from disposing of the land other than where it was permitted by the agreement. 

Read the full summary here.

Metropolitan Housing Trust Ltd v RMC FH Co Limited
[2017] EWHC 2609 (Ch)

The defendant owned the freehold reversion of a block of flats (“the block”). The claimant was the headlessee. Both parties contended that they enjoyed the benefit of a right to light to certain windows in the block. The headlease provided, amongst other things, that the claimant would not permit an encroachment on the demised premises so as to cause damage, annoyance or inconvenience of the landlord. 

Read the full summary here.