More problems with easements

Michael Moore (Automobiles) Limited v BP Oil (UK) Limited First-tier Tribunal Property Chamber (Land Registration) ref/2015/0174

The complex legal rules pertaining to easements can often cause problems for landowners and conveyancers alike. Although involving commercial premises, this case serves as a reminder to us all of two little known rules.

Michael Moore (Automobiles) Ltd (‘Moore’) owned a petrol filling station with a car showroom at the rear. The filling station was leased to BP under a 99 year lease. As the car showroom had no direct access to the highway, the lease reserved a right of way on foot and for vehicles over a designated access way (‘the Access way’). Subsequently, Moore acquired a further piece of land (‘the Car Park’) at the rear of the showroom but with no direct access to the highway. Basically, Moore claimed a right to use the existing easement over the Access Way to get to and from this land.

Moore could not legally make use of the existing easement due to the rule that if you have a right of way to Plot A you cannot then use it to access Plot B – the so called Rule in Harris v Flower (1904) 74 LJ Ch 127. So Moore applied to Land Registry to register a prescriptive easement over the Petrol Station in favour of the Car Park. It was supported by a Statement of Truth showing that access to this land had been over the Petrol Station since 1985 i.e. well over the basic 20 years use necessary to claim a prescriptive easement. This use had been by Moore itself and by various tenants to whom Moore had rented the Car Park.

BP objected to the registration and the application was referred to the Tribunal. BP argued that Moore, as freeholder of the Petrol Station, was unable as a matter of law to acquire any prescriptive rights over it. The determination of this was heard as a preliminary issue.

The critical legal issue here was the “fee simple rule”. For an easement to be acquired by prescription there must be user as of right by one fee simple owner against another fee simple owner. This rule applies whatever the legal basis of the claim, be it at common law, under the doctrine of lost modern grant or by virtue of the Prescription Act 1832. So, because of this rule, Moore could not claim an easement over its own land – even though it was tenanted.

Another application of the “fee simple rule” is “the common landlord rule”. As is said in Megarry’s Law of Real Property (8th ed.) at 28-056: “a tenant cannot prescribe for an easement over his landlord’s adjacent land, for the landlord can have no right against himself”. This is because use by the tenant is deemed to be use on behalf of the landlord i.e. Moore.

It was thus impossible for the Moore to succeed in his claim to a prescriptive right of way over the Petrol Station based on use by its tenants. There has been no continuous 20-year period of user as of right enjoyed by anyone other than a tenant of the common landlord, namely Moore.

In effect, Moore was seeking to obtain a prescriptive easement against itself, which was impossible as a matter of law. It followed therefore that the application must fail.

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