iii. Whether he can ask Peter or Robert (if Peter sells the remaining premise to Robert) to allow William or himself to continue to drive on the passageway or the service road and to park his car in the yard (40 marks)The issue is whether William has any right or easement to use the yard for parking purposes. The tenancy agreement did not stipulate any covenant to use the yard for parking purposes in favour of William. Therefore, it is necessary to examine William has any easement over Peter’s yard.1st Easement: right to drive on passageway or the service roadThe first question to be asked is whether this right is capable to be an easement or not. Under Re Ellenborough Road there are six defining characteristics of an easement. There is a dominant and servient land and they are occupied by different persons(William/himself and Robert) on the facts. The right to driveon these roads is essentially a right of way, and has been
held repeatedly in many existing cases to be subject matter capable of being an easement e.g. Borman v Griffith. It also accommodatesthe land in this case because the two roads are the only roads on the premise capable of allowing W to enter 1A. The other characteristics are not in issue. Thus this is a right capable of becoming an easement.2nd Easement: right to park his cars in the yardThe right to park can enhance and better the enjoyment of land parking can enhance its value for residential purposes. The right is also capable of forming the subject matter of a grantas it falls within the existing categories of recognised easements (Sweet & Maxwell). The main issue here is whether it there is joint use, the test here is whether the servient owner retained possession and, subject to the reasonable exercise of the right in question control of the servient land (Moncrieff v Jamieson). Peter still has reasonable useof the yard (Batchelor v Marlow) which is capable to park 4 cars to park his two cars, while it is unknown whether Williamwas entitled to use one of the remaining or both slots. However, joint use is satisfied as parking itself will not constitute exclusive use if not all the slots are dominated (Sweet & Maxwell).2) Acquisition of Easementi. s. 16 CPOSince in this tenancy agreement there is no express provision allowing W to acquire the easement, therefore need to consider whether the easements have been acquired by implied grant or s.16 of CPO. In this case both Wheeldon and s16 can be applied.Under s16 there are five requirements: (1) right capable of being an easement: established above that both rights are capable of being easement. (2) right is passed under assignment ofland. There is assignment of land here as shown from the evidence of the tenancy agreement being in writing. (3) right is enjoyed with land at the time of assignment. As shown from the evidence that P parked two cars in the parking lot, shows that the right to park is indeed enjoyed. However there is lack of evidence that P regularly enjoyed the right of driving on pass
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- Winter '20
- Leasehold estate, William