1. Horace has bought Hillview House (HH), because he likes the southerly views. The land to the south was sold by Horace’s predecessor in title, Bertie, to Peregrine, a property developer. Peregrine proposes to build a six storey development of executive apartments, Pilemhi (P). Horace has told Peregrine he cannot do this because Horace has a right to the view. Peregrine laughed and ordered 8 million tons of bricks.

2. Horace’s neighbour, Clarence, is a farmer who has purchased additional fields (AF) to the east of HH. Bertie permitted Clarence to cross the land of HH to reach the new fields. Clarence used many different ways across HH but they all end at a gate in the boundary fence of HH, through which Clarence reaches AF. Clarence built a tractor shed on his land close to the gate. He can only reach the shed by crossing the land of HH. Horace has put a padlock on the gate and told Clarence he may no longer cross HH’s land.

The law of property is a complex and intricate topic which is subject to numerous exceptions and bodies of rules. The easiest way to understand property law and in turn apply it to legal situations is to identify the key principles upon which property law is based.

Primarily it is important to remember that a property right is merely a concept in land, rather than actually being the physical asset itself. The principles upon which property law is based are the rights, interests and duties which can exist in land and how those rights and interests can be created, enforced and terminated.

1. In order to successfully advise Horace, it is imperative to firstly identify the classifications of property and how they work. Property is something that can be subject to possession and is classified as either realty or personalty, the reason for this being “to differentiate between what the law considers to be land and other forms of property”1.

Realty is considered to be anything comprising land and its main distinction from personalty is the remedies the owner may rely upon in the event of having to recover the land. In the case of realty being dispossessed, the owner may recover the land in a real action, or in other words an action against the land, or the interest, itself, which is known as an action in rem. This may be enforced against the whole world. Whilst the majority of land is tangible, there are some areas which stretch to intangible rights, also known as incorporeal hereditaments. These are rights over another persons land, the most common example being an easement. It is this area of property rights that proves most useful when advising Horace.

However, certain requirements must be met in order for a property right to constitute an easement, essentially that it must be sufficiently definite to be capable of forming the subject matter of a grant. Unfortunately, an easement cannot be relied upon in Horaces’ situation due to it being stated that “The following have been held to be too indefinite to be capable of forming an easement…(a) A right to a view”2, primarily supported by Aldred’s case3. In addition it was held by Lord Goff of Chieveley in the case of Hunter v Canary Wharf4 that a persons’ right to build upon their own land cannot be restricted by the fact that this will spoil a neighbour’s enjoyment of his land. This point is supported and argued by Lindley L.J in the case of Chastey v Ackland (1895) who stated that “no-one has a right to prevent his neighbour building on his own land”5.

In contrast to realty, personalty is considered to be anything other than land such as cars, furniture or even debts. It is more difficult to recover such things and the owner must usually be satisfied with compensation to the value of the loss. This action is against the dispossessor and is therefore known as an action in personam as it is only enforceable against one person.

However, the distinction between rights in rem and rights in personam does not end here and it is the significance and importance that they hold in property law which has been the subject of much debate, due to the suggestion that “Rights in personam are seen as purely personal rights which remain outside the realm of property law”6. Proprietary rights must be capable of binding third parties and if they fail to do so they are merely personal. This raises the question of whether personal rights will ever be able to override proprietary rights.

According to Lord Wilberforce this is only possible if the right is “definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability”7. Therefore, in order for Horace to prove he has a right to a view he must define it and show that it has permanence or stability. This proves difficult to establish because to define a view would inevitably restrict anybody from building anywhere in that view. In addition, whilst property can be said to be permanent, a view cannot due to there being little or no restriction to build beyond the owners land but within their view.

In conclusion to the situation it would appear that there is no supportive precedent for a right to a view and as Horace would find it almost impossible to define his view as a right, there are no legal remedies to prevent Peregrine from building Pilemhi.

2. In advising Horace, it must be noted that Clarence obviously has an interest in Horaces’ land due to it being the only access to his own land. The problem is what type of interest is it, is it capable of being a particular interest and how has it been created.

The interest is most likely to be an easement, which is defined as being a right exercised over one plot of land for the benefit of another. However, an easement is heavily defined and for the claim to be capable of being an easement it must satisfy the four characteristics listed by Dankwerts J in Re Ellenborough Park (1956)8. These characteristics are as follows; there must (1) be a dominant and servient tenement, (2) the right must accommodate the dominant tenement, (3) the dominant and servient tenements must be owned by different people and (4) the right must be capable of forming the subject matter of a grant.

In the given situation Horaces’ land is the servient tenement as it suffers the burden, whilst Clarences land is the dominant tenement because it enjoys the benefit and that the two owners satisfy the requirement that the tenements be owned by different people. However, proving that the right accommodates the dominant tenement is more difficult. As was shown in the case of Hill v Tupper9 the right must be of benefit to the dominant land and not just to the owner of it.

Whilst in the Hill case it was held that the right “did not confer such an interest in the plaintiff as to give him a right of action against another person”10, this conflicts with the judgement in Re Ellenborough which found that the use of a park for recreational purposes could be recognised as an easement and that “the right to the full enjoyment of the park did not fail to qualify as a legal easement for want of the necessary connection between its enjoyment and the premises to which that enjoyment was expressed to belong”11. It would seem therefore that as Clarence’s property satisfies the requirement of proximity to Horaces’ land and his enjoyment of the land will be supported by the Re Ellenborough judgement, the right can therefore accommodate the dominant tenement.

Finally, for the right to be capable of forming the subject matter of a grant there must be a capable grantor and grantee and the right claimed must be sufficiently definite. It is uncertain whether Clarences’ claimed right of way across Horaces’ land can be deemed sufficiently definite due to him using several different paths to get to his own land. However, as all the paths lead to the same gate in the boundary fence there is some stability and definition attached to the right of way. Additionally, it has been stated that “A right to cross land between two specified termini, over every part of the land and not merely between the termini”12is held to satisfy the requirements of being capable of being an easement.

As all the requirements of an easement are met by the claimed right of Clarence, it must now be addressed whether an easement has actually been created.

An easement can be created by four different main methods; an express grant, which this situation clearly doesn’t satisfy due to the lack of a deed or expressed act; an implied grant, which relies heavily upon the rule in Wheeldon v Burrows13 ; a grant evidenced by prescription or by proprietary estoppel.

The most applicable method in this situation is prescription, which allows for an easement to arise with minimal evidence, based on the right having been enjoyed for a long period of time. There are three main requirements of a prescriptive right. The first is that Clarence must be able to prove the user as of right. This means that the right must be used as if it is an ‘assumed’ right, therefore it cannot be by force, by stealth or by permission.

Bertie ‘permitted’ Clarence to cross the land, therefore the easement may not satisfy the prescriptive method as “an easement by prescription will fail if it shown that the right was enjoyed with the permission of the servient owner”14 as was shown in the case of Dalton v Angus15. However, no such permission has been gained from Horace, therefore, Clarences’ use is of right. Secondly, the use must be continuous which Clarences’ appears to be. It was held in the case of Hollins v Verney16 that a right of way used three times in twenty four years was not sufficiently continuous. Thirdly, the user must be by or on behalf of the fee simple.

Traditionally at common law, an easement could only be established by prescription if it had been enjoyed from time immemorial which is set at 1189. However, courts are now prepared to accept that a right enjoyed for twenty years may constitute a right by prescription.

Due to the difficulties of proving use since 1189, the courts agreed that if a right had been enjoyed for a period of twenty years or more they could presume that a deed had been granted but lost, which was deemed a lost modern grant.

Finally, the Prescription Act (1832) provides the only statutory support for a prescriptive easement. The Act requires that “no act or other matter shall be deemed to be an interruption”17, therefore allowing for a claim under the act when there has been less than twenty years user, but requires that it has been for at least nineteen years and a day.

In conclusion, Horace should be advised that although an easement can be proved to exist, there is little evidence that a deed ever existed, therefore Clarence is solely reliant on the method of prescription which requires prolonged and continuous use of the easement. If this cannot be proved, Clarences’ only alternative would be to rely upon a bare licence which would be based upon Berties permission to use the land. This type of licence is personal, freely revocable and does not bind third parties, such as Horace.