Land registration – Easement – Implied grant – Equitable easement – Appellants appealing against decision of First-tier Tribunal that respondents entitled to implied right of way over driveway and right to park on land – Whether easement implied under Wheeldon v Burrows or section 62 of Law of Property Act 1925 – Whether implied equitable easement by virtue of obligations in earlier conveyance – Appeal dismissed
Dinsdale Hall was a Grade II listed building and part of Dinsdale Park, Middleton St George, Darlington. In September 1988 two unregistered parcels of Dinsdale Hall and adjacent land were sold to W and his wife and registered as Dinsdale Hall, The Hall, 2 The Hall and land at the east side of 2 The Hall. In 1988, W obtained planning permission to convert Dinsdale Hall into a nursing home. In 2000, planning permission was granted to convert it into 16 self-contained apartments.
In about January 2011, 2 The Hall was repossessed and sold to the respondents in 2012 pursuant to a power of sale contained in a charge dated September 2005, together with a small area of garden land. In 2013, the first appellant purchased Dinsdale Hall. The remaining eight appellants held long leases of flats in Dinsdale Hall from the first appellant and had rights of way and parking over parts of the southern driveway in the front of Dinsdale Hall.
In December 2013, the respondents applied to register a right to use two parking places in the East Car Park of Dinsdale Hall together with a right of way with or without vehicles of a private access road to the south of The Hall necessary to gain access to the parking spaces. The application was opposed and eventually referred to the First-tier Tribunal (FTT) under section 73 of the Land Registration Act 2002.
The FTT upheld the respondents’ claims to the right of way and the right to park. The tribunal was satisfied that the first appellant was obliged to observe the obligations imposed in the 1988 conveyance; and that the respondents were entitled to the benefit of the obligations imposed. The Land Registrar was therefore directed to register the right of way and right to park in favour of the respondents’ registered title. The appellants appealed.
Held: The appeal was dismissed.
(1) On the true construction of the 2012 transfer, there had been no express grant of an easement either over the roadway or of a right to park to the respondents.
(2) The existence of an alternative access to the respondents’ property was not fatal to an implied easement under the test in Wheeldon v Burrows ((1892) LR 12 Ch D 31). The question was whether the easement was reasonably necessary for the enjoyment of the dominant tenement. It was not the same test as an easement of necessity. It was clear from the 2000 planning permission that W intended there to be a vehicular access via the southern driveway. Accordingly, vehicular access via the southern driveway together with a right of parking were reasonably necessary to the enjoyment of that property.
The fact that Dinsdale Hall and 2 The Hall were in common ownership was not fatal to the claim. The test in Wheeldon was based on non-derogation from grant. On the evidence, it was the intention that 2 The Hall should enjoy vehicular access and parking to the front. The absence of an easement entitling such access and/or parking would make the mortgaged property significantly less valuable as a security. It would be a derogation from grant to deny the mortgagee the easements as appurtenant to the mortgaged property. There was no unity of ownership and/or possession when the receivers were appointed in 2011. The mortgagees of Dinsdale Hall and 2 The Hall were different. When the September 2005 mortgage was granted, and thereafter, there had been regular use of the southern driveway and parking in front of Dinsdale Hall. There was no evidence of a contrary intention when 2 The Hall was sold to the respondents. It was clear from section 62(4) of the Law of Property Act 1925 that the contrary intention had to be expressed in the conveyance. Therefore, the right to use the southern driveway together with a right to park at the front of Dinsdale Hall was implied into the 2005 mortgage in favour of MAS under the rule in Wheeldon v Burrows. Equally, those rights would have been transferred to the respondents in the 2012 transfer under section 62. Evidence of an intention to transfer such rights was unnecessary. Section 62 applied in the absence of a contrary intention in the conveyance itself. There was no such contrary intention in the 2012 transfer.
(3) The FTT’s decision that there was an equitable easement could not stand. There was nothing in the 1988 conveyance which created or purported to create any easement in favour of 2 The Hall over the southern drive. Nor could there be. 2 The Hall was within the property conveyed to W and thus there could not be a dominant and servient tenement. There was no agreement to create an easement. The right to the two parking places arose under the 2000 planning permission which could not be regarded as a variation of the 1988 permission. The obligation to comply with the July 1988 permission, even if enforceable by the respondents, would not be wide enough to grant the respondents the right to park in the two places. The respondents were not, as a matter of law entitled to the benefit of the covenants in the 1988 conveyance. They derived their title from W who was subject to the burden, not the benefit, of the covenants. They were not successors in title to the local authority and did not own any part of the retained land. Positive covenants were not enforceable against successors in title of the original covenantor. No scheme of development had been established. It followed that the respondents acquired no rights by virtue of the 1988 conveyance and there was no equitable easement: Birdlip v Hunter [2016] EGLR 42 applied.
(4) Accordingly, for reasons different to those of the FTT, the respondents were entitled to an implied right of way over the southern driveway and a right to park at the front of Dinsdale Hall.
Richard Selwyn Sharpe (instructed by Taylor Rose TTKW) appeared for the first appellant and (instructed by Newbys Solicitors, of Stockton-on-Tees) for the second and fourth to ninth appellants; the respondents appeared by their representative.
Eileen O’Grady, barrister
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