Where an easement has been expressly granted, its scope and effect will depend on the construction and interpretation of the deed conferring the rights granted. As a result, precise drafting and careful selection of words is crucial. Draftsmen can learn much from Fanfare Properties Ltd v Grafton Estate No 2LP (Nominee One) Ltd [2012] EWHC 2918 (Ch). The proceedings concerned a deed made in 1996 to facilitate a development that did not occur. Following a change in the ownership, the new owners of the dominant land made a planning application for a different scheme. The servient landowner objected. It acknowledged that the developer was entitled “to install and retain outward-opening windows” above the land in its ownership. It also accepted that the deed of easement included rights of entry onto the servient land “with or without workmen machinery scaffolding equipment and materials” for the purposes permitted by the deed, but argued that the developer would not be “installing” anything within the meaning of the rights granted. Was the servient landowner correct? The judge began by referring to the Oxford English Dictionary, which defines the word “install” as meaning “to place (an apparatus, a system of ventilation, lighting, heating, or the like) in position for service or use”. The judge also cited Engineering Industrial Training Board v Foster Wheeler [1970] 1 WLR 881, where the court distinguished between installation and assembly. In that case, the Court of Appeal interpreted the word “install” as meaning “putting in place something already made so that it can be used”. An element of assembly may be required. However, a thing is installed if it will be ready to work when it is put in its place and, if necessary, connected up. The 1996 deed conferred rights to install new windows in the present structure and to deploy scaffolding in order to do so. However, the developer wanted to do much more than this. It planned to demolish an entire face of the building and to erect a new façade incorporating outward-opening windows within a wall constructed entirely of glass. Part of the proposed new walling included outward-opening windows, but a very large part of it did not. Consequently, it would not be accurate to say that the developer was simply planning to “install outward-opening windows” (even though it planned to use the same material throughout the façade). Was the developer planning to use the scaffolding to do more than install the windows? The servient landowner claimed that the scaffolding was required to protect the surrounding properties from the potentially dangerous effects of the work and to create a barrier around the development. The judge agreed that the fact that the developer intended to retain the scaffolding throughout the construction period suggested that it might be needed for extraneous reasons, but ruled that there was insufficient evidence to prove that it would be used for other purposes. Nonetheless, the developer required access for purposes that went beyond the installation of outward-opening windows and would, as result, be trespassing on the servient land. Allyson Colby is a property law consultant
Where an easement has been expressly granted, its scope and effect will depend on the construction and interpretation of the deed conferring the rights granted. As a result, precise drafting and careful selection of words is crucial.
Draftsmen can learn much from Fanfare Properties Ltd v Grafton Estate No 2LP (Nominee One) Ltd [2012] EWHC 2918 (Ch). The proceedings concerned a deed made in 1996 to facilitate a development that did not occur. Following a change in the ownership, the new owners of the dominant land made a planning application for a different scheme.
The servient landowner objected. It acknowledged that the developer was entitled “to install and retain outward-opening windows” above the land in its ownership. It also accepted that the deed of easement included rights of entry onto the servient land “with or without workmen machinery scaffolding equipment and materials” for the purposes permitted by the deed, but argued that the developer would not be “installing” anything within the meaning of the rights granted.
Was the servient landowner correct? The judge began by referring to the Oxford English Dictionary, which defines the word “install” as meaning “to place (an apparatus, a system of ventilation, lighting, heating, or the like) in position for service or use”. The judge also cited Engineering Industrial Training Board v Foster Wheeler [1970] 1 WLR 881, where the court distinguished between installation and assembly. In that case, the Court of Appeal interpreted the word “install” as meaning “putting in place something already made so that it can be used”. An element of assembly may be required. However, a thing is installed if it will be ready to work when it is put in its place and, if necessary, connected up.
The 1996 deed conferred rights to install new windows in the present structure and to deploy scaffolding in order to do so. However, the developer wanted to do much more than this. It planned to demolish an entire face of the building and to erect a new façade incorporating outward-opening windows within a wall constructed entirely of glass. Part of the proposed new walling included outward-opening windows, but a very large part of it did not. Consequently, it would not be accurate to say that the developer was simply planning to “install outward-opening windows” (even though it planned to use the same material throughout the façade).
Was the developer planning to use the scaffolding to do more than install the windows? The servient landowner claimed that the scaffolding was required to protect the surrounding properties from the potentially dangerous effects of the work and to create a barrier around the development. The judge agreed that the fact that the developer intended to retain the scaffolding throughout the construction period suggested that it might be needed for extraneous reasons, but ruled that there was insufficient evidence to prove that it would be used for other purposes.
Nonetheless, the developer required access for purposes that went beyond the installation of outward-opening windows and would, as result, be trespassing on the servient land.
Allyson Colby is a property law consultant
