Before answering this, we should look at what exactly is an easement? In short, an easement is the right of one landowner to make use of another nearby piece of land for the benefit of his own land. The characteristics of an easement are:
- There must a dominant land which enjoys the benefit of the easement;
- There must be a servient land over which the easement is exercised;
- The right being granted must accommodate the dominant land; and
- The right must be capable of forming the subject matter of a grant.
The most common easements are a right of way, a right of support and a right of light. Here we will look at a right of way.
Past case law has stated that a right of way over servient land, granted for access to the dominant land, cannot also be used for access to land adjoining or neighbouring the dominant land. However, it is possible for an easement to be used in connection with land that is not the dominant land but this will depend on the circumstances and the wording of the easement granted – which is what happened in the recent case of Gore V Naheed and another .
In this case, the wording of the easement was as follows:
“TOGETHER with the right for the Purchasers their respective heirs and assigns and others the owners and occupiers of the said granary in common with other persons having similar or greater rights with or without horses or other animals carts or wagons laden or unladen to go and return along and over the private entrance road or way coloured yellow on the said plan for all purposes connected with the use and occupation of the said granary but not further or otherwise.”
The facts were: the dominant land i.e. the Granary was adjoined by a garage (the garage did not form part of the Granary’s title). The owner of the Granary enjoyed a right of way over a driveway i.e. the servient land to access the Granary – as set out in the above easement. However, the driveway was also used to access the garage to park cars. The owners of the driveway were obstructing the Granary owner’s ability to exercise the right of way in order to access the garage. The owners of the driveway held that the right of way did not extend to being able to park at the garage, the right of way was to be used for the Granary’s benefit only. The owner of the Granary contested this.
The Court of Appeal held that the right of way could be used in order to access the garage for parking as it was ancillary to the use and occupation of the Granary.
The Court looked at the principle that an easement must ‘accommodate’ the dominant land. It also looked at the physical layout of the properties and the easement.
The Court considered two key issues:
- The wording of the covenant, in particular, the right of way was granted “for all purposes connected with the use and occupation of the Granary”; and
- Whether the garage was subsidiary or ancillary to the Granary.
Applying this approach, the Court found that the use of the garage for parking was ancillary to the use and enjoyment of the Granary. But, this also meant that, if the garage were to be sold or let separately from the Granary, it could no longer benefit from the right of way over the driveway (as the garage’s use was no longer used in connection with the Granary).
While this case contains no new law, the Court of Appeal has reiterated that ascertaining the extent of an expressly granted easement is a question of construing the original grant. This will always be a question of fact.
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