Easements: a right to hang a gate over a driveway is capable of being an easement

30 October 2014

A right to occupy airspace by hanging a gate over land forming a driveway can constitute a legal easement.

Key points

  • A right to occupy airspace by hanging a gate over land forming a driveway can constitute a legal easement
  • However, the period and quality of use was insufficient for a legal easement in this case
  • An equitable easement was established, the extent of which could be qualified so that it could not be exercised in a way which would substantially interfere with the driveway owner's enjoyment of his property
  • Mediation was suggested as a preferred solution for resolving neighbour/boundary disputes

Background

In Bradley v Heslin, the owners of a residential property (B) had the benefit of an express right of way over part of their neighbour (H)'s driveway. Many years previously, a former owner of B's property had (with at least the tacit agreement of the then owner of H's property) constructed a pair of entrance gates, supported by pillars, at the top of the driveway, where it met the public highway.

Principally as a result of security concerns, B's practice was to close the gates when not in use. This caused inconvenience to H (in terms of having to stop and open the gates when returning home) and H sought to have the gates secured in an open position. A dispute arose as to the ownership of the gates and the respective rights of B and H to close and/or keep open the gates.

Ownership and legal easement

Having considered the historic evidence as to the construction and subsequent use of the gates and pillars, the court concluded that these were owned by B.

The court further held that while it would be possible to establish an easement to occupy airspace by hanging a gate over land forming a driveway, on the facts in this case there had not been the required period and quality of use to establish a legal easement to close the gates at all times and for all purposes connected with B's property (which was what B contended).

Equitable easement and limitations

However, the court held that B was entitled to an equitable easement to close and open the gates for all purposes connected with the reasonable enjoyment of its own property, provided that this did not substantially interfere with the reasonable enjoyment of H's property. What constituted substantial interference was to be determined by inferring the mutual understanding of the owners of the properties at the time that the arrangement was made.

The court rejected an argument that an equitable easement could not be qualified to prohibit use in a way that would cause substantial interference with the servient owner's use of his land; easements were often subject to a natural limit beyond which any use may be regarded as excessive in increasing the burden on the servient tenement.

Accordingly, the court ruled that H had therefore not been entitled to padlock one of the gates open (as had been done); but B's right to close the gates was not unlimited and would be subject as referred to above.

Comment

Two issues of interest arise from this case:

  • the possibility of a right to occupy airspace by hanging a gate over land
  • the judge's comments on imposing qualifications to the exercise of equitable easements

In reaching his conclusion on the airspace right, the judge commented that "....If the right to hang a clothes line ...is capable of being an easement I do not see why the right to occupy airspace by hanging a gate over the land forming a driveway is incapable of being an easement that accommodates the dominant tenement. It does not amount to a claim to the whole beneficial use of the driveway, nor does it render the [servient owners'] ownership of the driveway illusory..."

In seeking to offer examples of how B's rights may be exercised in practical terms, the judge suggested that - ahead of putting in place adequate opening arrangements (i.e. remotely operable electric opening) - it would not be substantial interference with H's rights for the gates to be closed: from 11.00pm until 7.30am; while H was staying away from their property; at times of heightened risk of intrusion from revellers; or to facilitate a particular need to keep someone or something (such as a child or a dog) within B's property and away from the public highway.

An alternative route to litigation?

More generally, the judge also referred to the fact that "...entrenchment of positions is a regrettable characteristic of neighbour disputes..." and expressed concerns as to the personal, financial and community cost of pursuing such disputes to trial.

He considered that parties are more likely to achieve a satisfactory outcome from mediation but that "in boundary and neighbour disputes the opportunities are not being taken and the warnings are not being heeded, and those embroiled in them need saving from themselves".

While the court could not compel unwilling parties to submit to mediation, the judge suggested that a direction to the parties in such cases "to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should [not] be regarded as an unacceptable obstruction on the right of access to justice."


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