The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice to nominate which land would constitute the dominant land for the purposes of any new easement. The purchaser bought additional land, but the original landowner had already sold on the remainder of his own land. The buyer sought a declaration that all the land had the benefit of the easement.
Held: An easement of parking is recognised in English Law. However, the original clause had not created an interest in land. Land could not be allowed to become burdened to an uncertain extent. Successors in title to the servient tenement could not be bound by such an interest until it became certain, by identification of the dominant land. The clause required a notice to be given, and the right to claim an easement arose only when that notice was given and they were not bound on the purchase itself.
The identification of a purchaser is not crucial to the existence of an estate contract in the sense that a contract in favour of an as yet unidentified purchaser to be nominated by a contracting party is a valid estate contract.
Peter Gibson LJ said: ‘an essential part of the interest to be granted was left uncertain. If one asks why the law should require that there should be a dominant tenement before there can be a grant, or a contract for a grant, of an easement sufficient to create an interest binding successors in title to the servient land, the answer would appear to lie in the policy against encumbering land with burdens of uncertain extent.
A further related answer lies in the reluctance of the law to recognise new forms of burden on property conferring more than contractual rights. A right intended as an easement and attached to a servient tenement before the dominant tenement is identified would in my view be an incident of a novel kind.’
Judges:
Peter Gibson LJ
Citations:
Times 01-Jun-1993, [1993] 4 All ER 157, [1994] 1 WLR 31
Jurisdiction:
England and Wales
Citing:
Cited – Pritchard v Briggs CA 1980
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported . .
Distinguished – Turley v Mackay 1943
. .
Appeal from – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .
Cited by:
Cited – Sainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .
Cited – Batchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
Lists of cited by and citing cases may be incomplete.
Land, Contract
Updated: 26 October 2022; Ref: scu.83154
