The Society has already submitted a response to the Consultation Paper. This deals with a further point.
12.7 (4) We
seek the views of consultees as to whether other
persons, in particular those holding an incorporeal hereditament
(such an easement) or an option or a right of pre-emption should be included
within the derivative class.
There
is a case for permitting applications from owners of easements granted by the
owners of certain long leases.
T is the leasehold
owner of a country estate under a lease with 125 years yet to run. A, the owner
of an adjoining property, constructs a cesspit in a corner of T’s land, with the written permission of T but not that
of T’s head landlord, who has never taken an interest in the management of the
estate. Proceedings for a termination order are brought against T. Upon
termination of the lease A will be at the mercy of the head landlord, who
becomes entitled to demand a ‘ransom’.
Other similar examples include rights of way, and rights to lay pipes
and cables.
L, the owner of Blackacre, granted to T a 199-year building lease to T on
which a block of flats was then constructed.
The flats were sold on long subleases, and one such sublessee
is S. T granted rights of light and air
to W, the owner of the adjoining plot Whiteacre, on
which another block of flats was built, without consent being obtained from
L. Shortly afterwards proceedings for
termination are brought against T, and S applies for relief by way of a new
direct lease. S has always opposed the development of Whiteacre
and wants to claim damages from W for loss of light and air. W, if given the opportunity, would apply for
provisions to be inserted in the new lease to preserve his entitlement to the
right granted by L.
A
feature of some such examples may be that the grantor’s interest, at the time
of the grant of the easement, would be expected to outlast the usefulness of
the grant, so that the lack of the head landlord’s consent is explained.
Arguably it should be open to the court to order a fresh grant to an easement
owner upon suitable terms. A
consideration for the court would be that a head landlord should not profit
from a ‘windfall’ at the expense of a dominant owner who had every expectation
that the servient leasehold owner’s interest was long
enough for the purpose required. One solution could be
to give dominant owners the right to apply if the servient
leasehold interest has more than (say)
50 years to run at the date of the grant.
But it may avoid uncertainties if the right to apply is conferred more
widely. Our preference would be that
there should be no such restriction. It is stressed that the right to apply
does not presuppose any entitlement to relief.
The
law as to the easements where the servient land was
leasehold at the time of creation is not straightforward. It seems that if the easement is derived from
a grant presumed by prescription it is normally good as against the reversioner (see, for example,
Although
the adjoining owner may be given the right to apply, it must be accepted that
he may not often have the practical opportunity to do so. It would be difficult to formulate any
effective procedure for notifying him of the application. For many reasons an application of this kind would be rare.
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