The Upper Tribunal turns conventional wisdom on its head by ruling that an easement could be implied into a mortgage of part under the rule in Wheeldon v Burrows.
The Upper Tribunal turns conventional wisdom on its head by ruling that an easement could be implied into a mortgage of part under the rule in Wheeldon v Burrows.
Dinsdale Hall (the Servient Land) and 2 The Hall (the Dominant Land) were owned by the same people, Mr and Mrs Ward (W), but registered under two separate title numbers. A roadway was used by occupiers and visitors to the Dominant Land giving access to car parking spaces. Both the roadway and the car parking spaces formed part of the Servient Land.
The Dominant Land was mortgaged in 2005 by W. It was repossessed by the lender in 2011 and sold to the respondents (M) in 2012 without the express grant of rights over the roadway or the car parking spaces on the Servient Land.
In 2011, Law of Property Act receivers were appointed over the Servient Land pursuant to an earlier mortgage granted over that property by W. In 2013, the receivers (as W’s agents) sold the Servient Land to the appellants (T).
M applied to the Land Registry to register an easement in favour of the Dominant Land to use the roadway and the car parking spaces on the Servient Land. T objected to this.
Was a right to use the roadway and the car parking spaces on the Servient Land implied into the 2005 mortgage deed of the Dominant Land under the rule in Wheeldon v Burrows?
An easement was implied into the 2005 mortgage deed because otherwise it would be a derogation from grant to deny the lender the rights claimed for the benefit of its mortgaged property (the rule in Wheeldon v Burrows is based on the non-derogation from grant principle).
It was always W's intention that the Dominant Land should enjoy vehicular access and parking over the Servient Land. This was evidenced by the planning permission obtained by W to convert the Servient Land from a nursing home to residential apartments, the site layout and a letter box at the front of the Dominant Land. Without this easement, the Dominant Land would be significantly less valuable as security.
1. Under the rule in Wheeldon v Burrows, all quasi-easements (i.e. rights that would be easements if the dominant and servient lands were not owned by the same person) exercised over the retained land for the benefit of the land being sold are ‘upgraded’ to full easements on a sale as long as they are: (1) necessary for the reasonable enjoyment of the part sold; (2) used at the time by the seller for the benefit of the part sold; and (3) continuous and apparent.
2. Despite the convenience of the outcome here, it is hard to see how this decision can be correct. It is a fundamental principle of the law of easements that, for an easement to be validly granted (and the rule in Wheeldon v Burrows operates to impliedly grant an easement), the dominant and servient lands must not be owned by the same person (known as ‘unity of seisin’). In this case, the judge mysteriously said that he did not accept that the principle of unity of seisin was fatal to the easement claimed, but did not go on to explain why.
3. Despite the outcome here, most people accept that it is not possible to grant and reserve easements in a mortgage of part. The case is therefore a reminder of the problems with mortgages of part and, whilst there are imperfect and cumbersome ways around the problem, they are best avoided by lenders if at all possible.
4. Once the judge ruled that an implied easement was granted by the 2005 mortgage, he went on to decide that this was passed on to M when the lender sold the Dominant Land to M in 2012 (even though there was no mention of the rights in the 2012 transfer to M). This was because of section 62 of the Law of Property Act 1925 which, unless excluded, operates to include in a conveyance of land all rights and easements benefiting that land.
Professional Development Lawyer
david.harris@brownejacobson.com
+44 (0)115 934 2019
Law firm Browne Jacobson has collaborated with Wiltshire Council and Christ Church Business School on the launch event of The Council Company Best Practice and Innovation Network, a platform which brings together academic experts and senior local authority leaders, allowing them to share best practice in relation to council companies.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023.
Announced in September but scrapped on 17 November the investment zone proposals were very short lived. The proposal has now morphed into the proposal for a smaller number of clustered zones earmarked for investment.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
On 2 November 2022, the Supreme Court handed down its judgment in the much awaiting case of Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30. The Court’s judgment suggests that the long established practice of using drop-in applications is in fact much more restricted than previously thought. This judgment therefore has significant implications for both the developers and local planning authorities.
Logistics company Eddie Stobart has been fined £133,000, after a series of failures which took place whilst excavation work was carried out, exposing its staff to asbestos.
This article is the second in a series to help firms take a practical approach to complying with the ‘cross-cutting rules’ within the new ‘Consumer Duty’ (CD) framework. The article summarises what it seems the Financial Conduct Authority (FCA) is seeking to achieve from the applicable rules (section 2 below) and potential complications arising from legal considerations (section 3).
Across the UK, homelessness is an urgent crisis, and one that is set to grow amid the rising cost of living. Local authorities are at the forefront of responding to this crisis, but with a lack of properties that are suitable for social housing across the UK, vulnerable individuals and families are often housed in temporary accommodation.
Claims arising from interest-only mortgages have been farmed in volume. Many such claims to date have sought to drive a narrative that interest-only mortgages are an inherently toxic product and brokers were negligent simply for suggesting them. Taylor is a helpful recalibration, focussing instead on what the monies raised by the mortgage product were being used for and whether the client understood the inherent risks.
Two directors of a construction company were fined after failing to ensure the safe removal of asbestos from a plot of land. On 14 and 15 November 2021, Directors Anthony Sumner and Neil Brown, of Waterbarn Limited were involved in the uncontrolled removal of asbestos material from a plot of land in Grasscroft, Oldham.
An engineering company in Tyne and Wear was fined £20,000 after a worker fractured his pelvis and suffered internal injuries after falling through a petrol station forecourt canopy, whilst he was replacing the guttering.
