December 1, 2004

You are consulted by Marvin Lancaster regarding his business premises located at Colton Farm. Marvin uses unit 2 Colton Farm as a garage where he fixes vehicles. These vehicles are usually cars which are insurance write-offs. Marvin repairs them and sells them.

Marvin bought units 2 and 3 Colton Farm in 1999 from Nigel Braniff who owned the Colton Farm Estate. The land conveyed to Marvin included a driveway which runs between units 2 and 3 and also a delivery yard behind the two units, as shown on the attached plan. Nigel still owns the rest of the Colton Farm Estate including Colton Farm Road which he used to use for access to all three units by vehicles, including delivery lorries.

Marvin uses Colton Farm Road for deliveries of vehicles. The driveway between numbers 2 and 3 is not wide enough for the lorries which deliver the damaged cars. The use of Colton Farm Road was not mentioned when Marvin purchased units 2 and 3.

In May 2001, Marvin let unit 3 to Tom on a three-year lease. Tom runs a florist business from unit 3. Marvin retained the driveway between units 2 and 3, and the yard at the rear of both. Marvin orally agreed with Tom that Tom could store his packaging materials in a shed which is located in the yard. Marvin gave Tom a key to the padlock on the shed.

On the expiry of Tom's lease in May, Marvin granted him a new ten-year lease which makes no reference to the use of the shed for storage. Marvin and Tom used to be good friends but they recently fell-out over an argument over an unpaid bill which Marvin issued to Tom for work he did to Tom's van. Marvin has now changed the padlock on the shed and told Tom that he cannot use the shed any longer.

Tom has told Nigel about this. Tom is very good friends with Nigel. Nigel has now told Marvin that he can no longer use Colton Farm Road. Marvin has consulted you on his rights, saying that his business will suffer if his lorries cannot use Colton Farm Road, as his own driveway is too narrow. You make enquiries of the solicitor who acted for Marvin when he bought units 2 and 3, and discover that the contract for purchase incorporated the Standard Conditions of Sale.

Advise Marvin on:
(a)  Whether he can insist on using Colton Farm Road. (12 marks)
(b) Whether Tom has a right to store his packaging materials in the shed in Marvin's yard. (5 marks)

Answer
Question 6 - A

– Marvin will have the right to use Colton Farm Road if he can show that he has an easement.
– An easement is a right over the land of another dominant and servient tenements/accommodation & benefit/separate ownership
– grant a right of way is capable of being a grant
– No express grant
– No grant by prescription as less than 20 years' continuous use
– Not necessity - not landlocked.
– Could have passed under Wheeldon v Burrows all former quasi-easements which at the time of sale were continuous and apparent,/necessary to the reasonable enjoyment of the land/and in actual use at the time of the sale.
– Could the right have been discovered by careful inspection? The mere existence of the roadway gave no indication but if Marvin saw that lorries were being loaded and unloaded when buying, he may be able to claim.
– S 62 LPA 1925 limited in scope to purchasers already in possession of the land claiming the benefit, such as former tenants, licensees.
– Not applicable here as Marvin bought with vacant possession

Answer
Question 6 - B