neighbours want to build on shared drive

ukmicky
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Re: neighbours want to build on shared drive

Post by ukmicky » Mon Mar 11, 2019 11:51 pm

Implied Easement of common intention
Any information provided is not legal advice and you are advised to gain a professional opinion

Collaborate
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Re: neighbours want to build on shared drive

Post by Collaborate » Tue Mar 12, 2019 12:13 am

ukmicky wrote:
Mon Mar 11, 2019 11:51 pm
Implied Easement of common intention
https://www.oxbridgenotes.co.uk/revisio ... asements_2
Implied:
By implied grant (or less often reservation)— Retrospectively included in a document. The party is saying the easement should be read into/implied into the document it was missed out.
Acquisition of an implied easement
IF THERE IS NO DOCUMENT TO IMPLY THE EASEMENT INTO, THERE CAN BE NO IMPLIED EASEMENT.

pilman
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Re: neighbours want to build on shared drive

Post by pilman » Tue Mar 12, 2019 5:22 pm

I'm not entirely sure that your definition of an equitable easement is comprehensive enough. Certainly an equitable easement is not registered, but that does not serve to define what it is. You need to explain how the easement was created in the first place and I don't think it has been established that there is one in this instance.
What happened was that one land-owner agreed with the neighboring land-owner that a shared driveway be created that would provide vehicular access to each of their respective properties.

To do that one land-owner removed the boundary fence to create a wide enough access that could be used by vehicles if land on each side of the boundary became the two halves of a single vehicular access that was to used as a shared driveway. which would allow parking on the land behind the respective houses.

That would mean that it was necessary that each land-owner grant a right of way over their half width of what would become a shared driveway.

At that point there came into existence two separate servient tenements and two separate dominant tenements.

Those are the requirement for an easement to be created, but for it to be a legal easement the agreement has to be set out in the form of a deed.

That this was not done, even after the shared driveway began to be used for the mutual benefit of each party, meant that the easement could only exist as an equitable easement.
One legal authority for such an agreement would be E R Ives Investment Ltd. v High [1967] 2Q.B. 379, although various other legal authorities have been established since that date.

It also seems that at that point another agreement came into existence that each party would pay half the cost of maintaining the new shared driveway owned equally by each of those land-owners.

The other part of an equitable judgement would be based on estoppel because of the length of time that use of the shared driveway had been both a benefit and a burden on each of the neighbouring land-owners and on each of their successors in title, which is the situation for the current OP.

For one party to now claim that they can substantially obstruct the right of way agreed on in the 1980's by building over their half of what has been a shared driveway for over 30 years is not a claim that is likely to be supported by a court of equity.

One other aspect of this posting has to be the effect of Section 62(2) Law of Property Act 1925.
(2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof.
When the transfer or conveyance was completed, so that the OP became legal owner of one of the properties that had the benefit of an equitable right of way, Section 62(2) LPA 1925 converted the equitable easement into a legal easement because it was a known easement enjoyed with the the land conveyed.

That there is physical evidence of such an easement can be proven by photographs showing the shared access was existing and in use when the sale was completed and that parking spaces or spaces were in use behind the house being conveyed.

The words used in Section 62(2) are all encompassing with these phrases deliberating included in the section.
"all ways" "reputed" "demised" "enjoyed with" "appurtenant to" "the land" "or any part thereof"

An equitable easement existing for over 30 years would certainly seem to meet that definition.

Collaborate
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Re: neighbours want to build on shared drive

Post by Collaborate » Tue Mar 12, 2019 6:09 pm

I remain unconvinced.

I've done a search of the Ives case (thank you for the reference) but the ratio of that case appears to be based on proprietary estoppel - https://webstroke.co.uk/law/cases/er-iv ... -high-1967. I'm fairly sure that PE will not apply to OP's situation as OP or his/her predecessor has not relied upon the ROW to their detriment. Mere reliance on it is insufficient - and is consistent with there being an informal agreement between the neighbours.

In the Ives case the neighbour built the foundations over the boundary, so the landowner agreed to allow that to continue on the basis that he would be allowed a right of way over the other's land. In reliance on that ROW he built a structure on his land only accessible over the ROW.

What OP's predecessors had was not an equitable easement. It was merely an agreement that did not bind the land as it was not contained in a deed. I really don't think s62(2) assists OP. Just because something has been used for 30 years doesn't make it something else. In the absence of there being an argument in favour of proprietary estoppel (which there isn't) either it was an easement the moment of the agreement or it wasn't.

OP really needs to take formal advice here.

pilman
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Re: neighbours want to build on shared drive

Post by pilman » Wed Mar 13, 2019 1:15 am

In reliance on that ROW he built a structure on his land only accessible over the ROW.
The structure was a garage that provided a space in which to park a car.

In this case each land-owner created parking spaces in their rear garden based on the knowledge that an easement had come into existence.
It was merely an agreement that did not bind the land as it was not contained in a deed.
That is the definition of an equitable easement, which is why in the case referred to as legal authority the court ruled in favour of the person who had the benefit of the equitable easement verbally agreed upon by the two adjacent land-owners. In that case there was only one dominant tenement which had the benefit of a right of way.
In the case posted about here each of the properties had the benefit of a right of way, with each property also having the burden of a right of way.

In the High case one landowner was allowed to retain the footings of a building on the other persons land in return for a verbally granted right of way.

In the posting here each landowner was allowed to use the other half of the shared driveway as a vehicular access to their respective back gardens in return for a verbally granted reciprocal right of way.

Whereas the two previous posting come to a different interpretation of the law regarding what constitutes an equitable easement, the advice that the OP should take formal legal advice should include the detail that the legal advice should be sought from a barrister who specialises in property law and has a full knowledge of how equitable easements come into existence.

Collaborate
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Re: neighbours want to build on shared drive

Post by Collaborate » Wed Mar 13, 2019 7:28 am

I agree that the advice must be from a specialist chancery counsel.

I suppose it all depends on whether a judge would consider the cost of installation of a hard standing for a car constitutes sufficient action to the detriment for OP or the neighbour to be able to argue proprietary estoppel.

arborlad
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Re: neighbours want to build on shared drive

Post by arborlad » Wed Mar 13, 2019 7:38 am

bluecliffsofdover wrote:
Mon Feb 18, 2019 12:09 pm
<>Hi all, We share a drive with our neighbors (2 detached houses) of which we bought ours 6 yrs ago, our vendors before us having been there from 1987,and in our S.P.I.F. it states that a mutual arrangement/agreement was in place allowing cars to drive to the back of our houses.


Is the layout and use of your two properties unique, or are there other properties that are similar?
arborlad

smile...it confuses people

pilman
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Re: neighbours want to build on shared drive

Post by pilman » Wed Mar 13, 2019 2:30 pm

The legal authority for what constitutes an easement was set out in the case of Re: Ellenborough Park [1956] Ch. 131 when Lord Evershed the Master of The Rolls, gave judgement after an unanimous decision had been reached by the Appeal Court that heard the appeal.

To qualify as an easement:
(1) there must be a ‘dominant’ and ‘servient’ tenement;
(2) the right must ‘accommodate and serve’ the dominant tenement;
(3) the dominant and servient tenements must be owned by different persons; and
(4) the easement must be capable of forming the subject matter of a grant.

Section 1 of the Law of Property Act 1925 sets out what rights are recognised as legal rights and what rights are recognised as equitable rights.
1 Legal estates and equitable interests.

(1)The only estates in land which are capable of subsisting or of being conveyed or created at law are—

(a)An estate in fee simple absolute in possession;

(b)A term of years absolute.

(2)The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are—

(a)An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute;

(b)A rentcharge in possession issuing out of or charged on land being either perpetual or for a term of years absolute;

(c)A charge by way of legal mortgage;

(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1 and any other similar charge on land which is not created by an instrument;

(e)Rights of entry exercisable over or in respect of a legal term of years absolute, or annexed, for any purpose, to a legal rentcharge.

(3)All other estates, interests, and charges in or over land take effect as equitable interests.
It is worth the OP being aware of those aspects of the law prior to seeking further advice from an expert in property law.

A right of way is most definitely an easement if it meets the 4 conditions set out by Lord Evershed, so what existed when the OP's property was offered for sale 5 years ago is very relevant.

His property was the dominant tenement which had a right of way that had been granted over the other half of the vehicular driveway which was not in the title of the land he bought.

It was not a legal easement as defined in section 1(2)(a) because there had not been a written deed of grant signed and witnessed by the two parties who agreed to have mutual rights of each other's property.

It therefore was an equitable interest as defined in section 1(3) LPA 1925.

In the earlier posting I referred to the legal authority that dealt with equitable interests. E R Ives Investment Ltd. v High [1967] 2Q.B. 379

In that case the right of way was granted as an equitable interest, when Mr. High agreed to allow the foundations of the block of flats to remain on his land.

That would be the "consideration" that created the verbal agreement that a right of way over the courtyard behind the flats would be granted to Mr. High.

In the case of an agreement to create a shared driveway the "consideration" would be the mutual right to use another person's land to create a vehicular access where none existing previous to that verbal agreement.

For over 30 years each party took the full benefit of that verbal agreement, so that when the property was sold 5 years ago that was the actual situation when the conveyance was completed. A right of way existed in favour of the property bought by the poster in this thread.

That was when Section 62(2) Law of Property Act 1925 came into affect.

I own both of the books that will be referred to by any professional involved in land law.
"Gale on Easements" and "Megarry & Wade The Law of Real Property"

The sections regarding equitable easements refer to all of the legal authorities that have been decided in any claims regarding whether an existing equitable easement is granted as an express easement by section 62(2) LPA 1925 when a conveyance is executed.

It also has to be pointed out that in the same way that Collaborate and I disagree about how your situation can be interpreted, that is what happens in each court case. One barrister will present his opinion of the law, while the other with argue a contrary opinion.

Each will refer to legal authority to support their argument.

Only one will persuade the judge that he or she is correct.

Please bear that in mind when considering legal action, but the loss of a right of way that has existed through a mutual agreement for over 30 years is a valuable asset that needs to be protected, especially when it existed as a matter of fact when the property was conveyed 5 years ago.

bluecliffsofdover
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Re: neighbours want to build on shared drive

Post by bluecliffsofdover » Wed Mar 13, 2019 4:16 pm

Hi all, thank you, arborlad its unique to the properties as they were divided by a fence down the centre from back to the front originally.

Collaborate
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Re: neighbours want to build on shared drive

Post by Collaborate » Wed Mar 13, 2019 7:07 pm

Irrespective of whether my assessment is right or Pilman's, The neighbour seems to want to deny OP rights over his drive but assert his own rights over OP's drive. Either way, on one of those the neighbour is going to lose.

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