Easements — Creation — Section 62 of Law of Property Act 1925 — Permission for tenant to park car — Conveyance of freehold to tenant — Whether implied grant of easement to park — Whether precarious permission to park ‘temporary’
In 1972 B, who owned a commercial property with land
to the rear, built a nursery school on that land and granted a lease of the
school building to the appellant. In 1979 the appellant purchased the school
building from B, who, in 1985, then sold the commercial property at the front
to the respondents. A forecourt in front of the commercial property was used
for the parking of cars. At the time of the trial, RI held leases of the first,
second and ground floors of the
commercial property. Although the leases did not include any part of the
forecourt, nor gave any express rights over it, RI and his clients had parked
their cars there without objection from the respondents. The appellant claimed
that when B granted her the lease of the school building, he gave her
permission to park cars on the forecourt. Accordingly, when she acquired the
school building, there was an implied grant of an easement to park on the
forecourt pursuant to section 62 of the Law of Property Act 1925. The appellant
alleged that RI was interfering with her right to park. The respondents’ claim
for a declaration that the appellant had no such rights was granted in the
county court. The appellant appealed.
allowed. Between 1972 and 1979, there was permission for the appellant to park
a car on a forecourt capable of taking two or three other cars. The permission
was not then an easement or an implied grant, as it lacked formality. It did
not take effect under an enforceable agreement, and was at all times
precarious. However, it was not temporary in the sense contemplated by Jenkins
LJ in Wright v Macadam [1949] 2 KB 744 of being limited in time,
even though it was precarious and could have been withdrawn. The trial judge
may have been misled by para (b) on p233 of Sara on Boundaries and Easements
(2nd ed) 1996 as to the effect of the decision in Wright v Macadam.
The permission crystallised as an easement under section 62 of the 1925 Act
upon the conveyance of the school building to the appellant.
This was an appeal by the defendant, Florence May
Gillman, against a decision of Judge Bradbury, in Southend County Court, in
proceedings by the claimants, John Alexander McGavin Hair and June Daryl Hair,
against the defendant, and to which Robin Inskip was second defendant to a
counterclaim.
David Pugh (instructed by Simpson Robertson &
Edgington, of Rayleigh) appeared for the appellant; Kevin Leigh (instructed by
Jefferies, of Westcliff-on-Sea) represented the respondents.
Giving judgment,
CHADWICK LJ said: This is an appeal from an order made on 21
October 1998 by Judge Bradbury, sitting at Southend County Court, in
proceedings brought by Mr John Hair and his wife, Mrs June Hair, in relation to
their property at 182 High Road, South Benfleet, Essex.
The property comprises a three-storey building
fronting onto the High Road. Between the front of the building and the road
there is a forecourt, some 20 ft in depth, that can be used for the parking of
cars. There is room on the forecourt for three or four cars, depending upon
their size and the care with which they are parked.
The property was purchased by Mr and Mrs Hair, as
trustees of Union Pensions & Estates Ltd, on 13 May 1985 from Mr Charles
Brice. Mr Brice had owned the property since 1961.
The building on the property was, at the time of
the trial and until October 1999, occupied by Mr Robin Inskip for the purposes
of carrying on his practice as a chartered accountant. He occupied the first
and second floors under a 21-year lease granted in November 1977, and the
ground floor under a lease granted in October 1992 for a term commencing on 24
June 1991. Neither of those leases included any part of the forecourt, nor gave
any express rights over the forecourt. Nevertheless, Mr Inskip, his staff and
his clients have parked cars on the forecourt without objection from Mr or Mrs
Hair.
The building that I have described is linked, at
its rear, to a more modern two-storey building, used as a nursery school. The
school building, now known as 182A High Road, was erected by Mr Brice in 1972
on land formerly part of his property at 182 High Road. Access to the school
building is gained by a passage, which leads from the High Road along the side
of the building on 182 High Road. In order to gain access to the passage and
the school, it is necessary to cross the forecourt.
The school building was purchased from Mr Brice,
in December 1979, by Mrs Florence Gillman. At that date, she was already in
occupation of the building as a tenant, under a lease that had been granted to
her by Mr Brice on 16 January 1972 for a term of seven years from 24 June 1972.
Neither that lease nor the conveyance of 18 December 1979 includes any part of
the forecourt. The lease and the conveyance each contain a grant, by way of
easement, of a right of way over the passage at the side of the building on 182
High Road, but neither contain a grant of any express rights over the
forecourt.
The dispute that has given rise to these
proceedings is whether, as she claims, Mrs Gillman has a right to park her car
on the forecourt. Mrs Gillman’s exercise of the right that she claims has
interfered with the use of the forecourt by Mr Inskip and his staff for the
parking of their cars, and the continued exercise of that right is likely to
interfere with similar use by Mr Inskip’s successor. But neither Mr Inskip nor
his successor has any right to use the forecourt, save as licensee. In law, the
question is whether Mrs Gillman is entitled to the right she claims as against
Mr and Mrs Hair, as the owners of the forecourt.
It was in those circumstances that Mr and Mrs Hair
commenced these proceedings, as long ago as January 1992, for a declaration
that Mrs Gillman is not entitled to park on their land. Mrs Gillman promptly
served a defence to that claim, and, with that defence, made a counterclaim
based upon limitation and prescription. Thereafter, little, if any, progress
appears to have been made in the proceedings over the next five years. On 28
February 1997 Mrs Gillman amended her counterclaim to add Mr Inskip as a
defendant. The amended defence and counterclaim put her case on a rather
different basis. The amended defence contains the following allegations. At
para 1A:
In or about 1971 the Defendant and a Mr Sidney
Charles Brice, the Plaintiff’s predecessor in title, agreed that Mr Brice would
construct a school on land within his ownership (which was to become 182A) and
that the Defendant would take a 7 year lease of the building. It was further
agreed that the Defendant, her lawful visitors, servants and agents would be
entitled to park on the forecourt of 182 High Road, South Benfleet.
Para 7A.1 was in these terms:
the agreement between the Defendant and Mr Sidney
Charles Brice, set out in paragraph 1A hereof gave the Defendant an entitlement
to park which was a right in the nature of an easement and which was capable of
being a legal easement. When, in 1979, 182A was conveyed to the Defendant there
was an implied grant of an easement to park on the said land pursuant to
section 62 of the Law of Property Act 1925.
Section 62(1) of the Law of Property Act 1925,
which re-enacts section 6 of the Conveyancing Act 1881, is in these terms:
62–(1) A conveyance of land shall be deemed to
include and shall by virtue of this Act operate to convey, with the land, all
buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters,
watercourses, liberties, privileges, easements, rights, and advantages
whatsoever, appertaining or reputed to appertain to the land, or any part
thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or
reputed or known as part and parcel of or appurtenant to the land or any part
thereof.
The question, therefore, was whether Mrs Gillman,
at the date of the conveyance of 18 December 1979, enjoyed a right in the
nature of a privilege, easement or advantage appertaining to, or reputed to
appertain to, the school at 182A, which she had occupied as tenant.
The proceedings came before Judge Bradbury in
October 1998. He heard oral evidence from a number of witnesses, including most
of those who had occupied the building at 182 High Road during the period since
1972; Mrs Gillman herself, her daughter, members of her staff, and others who
were familiar with the school and the forecourt. The judge expressed his
findings of fact in the following passage:
My findings of fact, all on a balance of
probabilities, are these. I am satisfied that what Mr Brice did was to give a
general permission to all his lessees to park at least one vehicle on the
forecourt, subject always to Mr Brice’s entitlement to use the forecourt for
his own purposes. I am further satisfied that the defendant usually parked on
the extreme edge of the forecourt and probably partially on the access way
leading to 182A High Road. In that way she would not get in anyone else’s way
and would not be especially noticeable. In the same way, she would not need to
notice those who were parked alongside her. I specifically now find, without
reservation and not on a balance of probabilities, that there was never any
question of any statutory authority wanting or requiring her to have a parking
space capable of being available for emergency use and close to the school. I am
satisfied that, other than giving a general indication as to whether the
defendant could park on his forecourt, Mr Brice did not designate any precise
area. I am further satisfied that he never gave to anyone exclusive use of any
part of his forecourt and, if he had any particular concern, it was that he
himself should always be able to park on that forecourt if and when he so
desired.
So this was an informal, flexible permission that
Mr Brice gave in relation to the forecourt as a whole and not exclusively in
relation to any one part of the forecourt. In making that finding of an
informal permission it is, I find, significant that not one of the leases or
conveyances to which I have referred include references to parking spaces or
parking rights. The letter of 4th January 1973 is a contemporaneous document
and is evidence of that informal permission.
The letter of 4 January 1973, to which the judge
referred in that passage, was before him in the form of a copy, the
authenticity of which was challenged, but which he held to be authentic. It was
a letter written by Mrs Gillman to Mr Brice. The principal purpose of the
letter appears to be to thank him for hospitality that she had enjoyed before
Christmas and for building a nursery school for her use and occupation. But she
went on to refer to the permission to park:
I would also like to thank you for your
co-operation in letting me have the use of the forecourt as a parking facility
for myself and staff.
The judge identified what he described as the
first question of law for decision. He expressed the question in these
terms:
whether this informal permission given in 1972
and which was still in existence in 1979 is capable of being an easement or an
implied grant.
I would, myself, prefer to put the question in
slightly different terms, namely whether the right enjoyed by virtue of the
permission given in 1972 was capable of being the subject matter of the grant
of an easement. But there is not, I think, any material distinction between
that formulation and the basis upon which the judge approached the point.
The judge, having described the nature of the
right, expressed the view that he was satisfied that the informal permission
given by Mr Brice to the defendant in 1972, and still subsisting in 1979, was
capable of being an easement. His conclusion is not challenged on this appeal,
and, for my part, I have no doubt that he was correct. The judge examined a
number of authorities concerning the extent to which a right to use land can be
asserted that, of its nature, would have some exclusionary effect upon the use
by the owner of that land. This was not a permission to use a defined bay. The
authorities fall on one side or the other of an ill-defined line between rights
in the nature of an easement and rights in the nature of an exclusive right to
possess or use. But, although the line may be ill-defined, there is no doubt as
to the side upon which this case falls. This was a permission to park a car on
a forecourt that was capable of taking two or three other cars.
The judge then identified a second question. He
expressed it in these terms:
The second question of law that may then arise
is: was the permission in fact an
easement or an implied grant for, if it was, it would then pass, pursuant to
section 62 of the Law of Property Act, in 1979 for the benefit of the defendant
on the conveyance to her.
That, as it seems to me, was the wrong question.
It indicates a misunderstanding as to the operation of section 62(1) of the Law
of Property Act 1925. There could be no doubt that the permission that existed
between 1972 and 1979 was not itself an easement or the grant of an easement.
There are a number of reasons that compel that conclusion. The first is that
the grant was never made with the formality required by the Law of Property
Act. The second is that it could not take effect in equity under an enforceable
agreement, because there has been no suggestion that the permission was other
than gratuitous. The third, leading on from the second, is that the permission
was, at all times, precarious, in the sense that it could be withdrawn at any
time.
The relevant question is whether a precarious
permission of this kind is converted into a legal easement upon the conveyance
to the person enjoying the permission of a legal estate in the land in
connection with which the permission is enjoyed. That question was answered by
this court in Wright v Macadam [1949] 2 KB 744, approving an
earlier decision of Farwell J in International Tea Stores Co v Hobbs [1903]
2 Ch 165.
The facts in Wright v Macadam were
simple. The defendant landlord had let to the first plaintiff a top-floor flat,
and had given her permission to use a shed in the garden of the property for
the storage of coal. The garden formed no part of the demise. Subsequently, the
landlord granted a new tenancy of the flat (with an additional room) to the
first and second plaintiffs. The grant of the new tenancy was held to be a
conveyance for the purposes of section 62(1). The new tenancy contained no
express grant of any rights in relation to the use of the shed for the storage
of coal. The plaintiffs continued to use the shed without charge until 1947.
They were then asked to pay an extra 1s 6d per week in respect of the use of
the shed. They refused to pay that extra amount, and sought a declaration that
the new tenancy included, as an easement, the right to use the coal shed.
The question, therefore, was whether the
permission that had subsisted prior to the grant of the new tenancy took effect
as an easement, by virtue of section 62, upon the grant of the new tenancy.
That appears from a passage at p748 in the judgment of Jenkins LJ, with which
Tucker and Singleton LJJ agreed. Jenkins LJ said:
The question in the present case, therefore, is
whether the right to use the coal shed was at the date of the letting of August
28, 1943, a liberty, privilege, easement, right or advantage appertaining or
reputed to appertain, to the land, or any part thereof, or, at the time of the
conveyance, demised, occupied or enjoyed with the land — that is the flat — or
any part thereof. It is enough for the plaintiffs’ purpose if they can bring
the right claimed within the widest part of the sub-section — that is to say,
if they can show that the right was at the time of the material letting
demised, occupied or enjoyed with the flat or any part thereof.
Jenkins LJ then went on to analyse section 62 and
its predecessor, section 6 of the Conveyancing Act 1881, and the cases that had
been decided under that provision. He said at p748:
I think the effect of the cases can be thus
summarised. First, the section is not confined to rights which, as a matter of
law, were so annexed or appurtenant to the property conveyed at the time of
the conveyance as to make them actual
legally enforceable rights.
He went on:
Secondly, the right, in order to pass, need not
be one to which the owner or occupier for the time being of the land has had
what may be described as a permanent title. A right enjoyed merely by
permission is enough.
He referred, as support for that second
proposition, to Farwell J’s decision in International Tea Stores Co v Hobbs,
which he approved. He expressed the principle in his own words at p750:
There is, therefore, ample authority for the
proposition that a right in fact enjoyed with property will pass on a
conveyance of the property by virtue of the grant to be read into it under
section 62, even although down to the date of the conveyance the right was
exercised by permission only, and therefore was in that sense precarious.
The judge distinguished Wright v Macadam
on the grounds that that case involved exclusive occupation of the garden
flat on the part of the tenant. It is by no means clear that that was the
position on the facts in Wright v Macadam. I find nothing in the
report that suggests that the tenant had exclusive right of use of the
coal shed. But even if that were the
case, there is no ground upon which Wright v Macadam can be
distinguished. The importance of the decision of this court in Wright v Macadam
(in the present context) is not that it decides what is the nature of a
right that can be enjoyed as an easement. Its importance lies in the
affirmation that a right that has been exercised by permission only, and is, in
that sense, precarious, can pass under a conveyance by virtue of section 62,
and, if it does so, becomes a right in the nature of an easement.
The judge referred to a passage that appears in Sara
on Boundaries and Easements (2nd ed) 1996 at p233:
The position is far from clear but from these
authorities it is possible to formulate some tentative rules. To be the subject
of an implied grant:
(a) the right claimed must have been actually
exercised prior to the conveyance, whether or not by permission. The court
looks at what was happening at the time of the conveyance and for a reasonable
time before;
(b) It must have been exercised in circumstances
where it was not and should not have been apparent that the exercise was only
temporary;
(c) It must be capable of being the subject
matter of a grant of legal easement;
(d) It must have been exercised for the benefit
of the land conveyed and not just as
common owner of the two properties;
(e) It must have been capable of being granted
express by the instrument into which it is being implied without adding new parties
or making any express reference to other land.
The judge considered, in particular, the
requirement identified in para (b) of that passage that the right claimed
should have been exercised in circumstances where it was not, and should not
have been, apparent that the exercise was only temporary. The same point is
made in Gale on Easements (16th ed) 1997 at para 3-100 on p160:
the case [Wright v Macadam] not
being one in which it could be said to have been in contemplation of the
parties that the enjoyment of the right (ie semble, the existence of the
shed) should be purely temporary, the general words imported into the tenancy
agreement operated to grant, as part of the tenancy, the right to use the shed
for the purpose of storing coal,
together with the necessary means of access to it.
That passage identifies, as it seems to me, the
distinction between a right that is temporary, in the sense that it is merely
precarious, so that it can be withdrawn at any time, and a right that is
temporary in the sense that, to the knowledge of the parties, it will only be
capable of being enjoyed for some limited period because of the nature of the
property over which it is to be enjoyed.
The point was explained by Jenkins LJ in Wright
v Macadam at p751. He said:
There is one other point to be mentioned. A
further exception has been recognised in cases in which there could in the
circumstances of the case have been no expectation that the enjoyment of the
right could be other than temporary.
He illustrated the point by reference to the
decision of this court in Birmingham Dudley & District Banking Co v Ross
(1888) 38 ChD 295. He referred, in particular, to a passage in the judgment
of Cotton LJ at p307. In Birmingham, the right claimed was a
right of light over an adjoining plot that, at the time, had upon it only
buildings of a lesser height than those that were contemplated would be erected
in the course of a building scheme. So it was known from the outset that the
right to light would be temporary, because when the scheme was carried into
effect, there would be higher buildings on the adjoining plot that would
interfere with the light. As Jenkins LJ put it at p752:
it was knowledge common to both parties that the
existing low building was going to be replaced by a higher one and, that being
so, the fortuitous access of extra light to the lessee’s building while the
scheme was being carried to completion could not be regarded as an enjoyment of
light which would pass to the lessee a right to have it continued in the same
degree.
Applying that analogy to the facts of Wright v
Macadam, the right to use the coal shed would be a temporary right (in
the sense contemplated by Jenkins LJ) if it had been known to both parties that
the landlord intended, within a limited period, to demolish the shed. The right
would have been temporary because, in those circumstances, it would have been
known that, at the end of that period, there would be no shed in relation to
which it could be exercised. But that was not the actual position in Wright v
Macadam. The shed was not demolished prior to the grant of the new
tenancy. Indeed, it was not demolished until after the defendant had succeeded
in the county court. It is plain from the observations of Tucker LJ that, had
the shed been demolished after the grant of the new tenancy, but before the
judgment in the county court, the Court of Appeal might well have thought it
right to grant a mandatory injunction compelling the landlord to restore it.
That could only be upon the basis that, once the easement had crystallised by
the operation of section 62 upon the grant of the new tenancy, it had become a
permanent right that could not therefore be destroyed by the removal of the
shed. In the event, the Court of Appeal took the view that, since the landlord
had demolished the shed only after he obtained the county court judgment in his
favour, justice could be done by awarding the plaintiffs a sum by way of
damages. But it is, I think, clear that the damages were calculated upon the
basis that there had been an interference with a permanent right.
In the present case, therefore, the judge’s
conclusion, based as it was upon his finding that the defendant, Mrs Gillman,
did not regard the permission that had been granted to her between 1972 and
1979 as permanent, cannot be supported. The judge said at p19A-C of his
judgment:
I cannot construe from the defendant’s evidence a
true belief on her part that, as between 1972 and 1979, she was being given by
Mr Brice a permanent entitlement to park on his land. Her letter written on 4th
January 1973 is not written in that vein. The lack of any suggestion in her own
solicitor’s file prior to the 1979 conveyance, the valuation report of 10th
July 1979 and the general tenor of much of the evidence all suggests to the
contrary.
It was inevitable, given the gratuitous nature of
the permission, that it should be recognised between 1972 and 1979 that the
permission could be withdrawn. It is appropriate to describe it as temporary in
that sense. But there was nothing temporary about the permission in the sense
contemplated by Jenkins LJ in Wright v Macadam. There was no
reason to think that the forecourt would not be available indefinitely as a
place to park cars.
It is suggested by Mr Leigh, who appears for the
tenant, that there is significance in the erection of a sign board in the
middle of the forecourt at some time in or about 1974. No doubt, the erection
of the sign interfered with the position in which cars could be parked, but it
did not make it impossible to park a car or cars on the forecourt, and it did
not interfere with the permission that Mrs Gillman had been granted. Her
permission was to park a car where she could find a space.
I am satisfied, therefore, that the judge was
misled by para (b) on p233 of Sara as to the true effect of the decision
in Wright v Macadam. Had he applied the law as laid down by this
court in that case, he must, on the facts as he found them to be, have come to
the conclusion that the permission, granted in 1972 and persisting until 1979,
crystallised as an easement under section 62(1) of the Law of Property Act
1925, when no 182A was conveyed to Mrs Gillman.
In expressing that conclusion, I think it
appropriate to draw attention to the words of Tucker LJ in Wright v Macadam,
at p755. The result in this case is that Mr Brice, through his act of kindness
in allowing Mrs Gillman to use the forecourt for parking her car and then
conveying property to her, has inadvertently created an easement that binds his
own property in the hands of his successors. It may be a matter of regret that
decisions in this kind of case ‘may tend to discourage landlords from acts of
kindness to their tenants. But there it is; that is the law.’
For those reasons, I would allow this appeal.
BUXTON LJ agreed and did not add anything.
Appeal allowed.
