A provision in a conveyance created a contractual licence, as opposed to an easement

The legal requirements for an easement have long been settled. There must be both a dominant and a servient tenement, each of which must be in different ownership. In addition, the right granted must be capable of forming the subject matter of a grant and must accommodate the dominant tenement. In Starham Ltd v Greene King Pubs Ltd [2018] PLSCS 7, the County Court at Central London had to decide whether provisions in an 1855 conveyance made by a railway company, conferring rights on the grantee and his heirs and assigns to use and enjoy land “as garden ground and for agricultural… or other… purposes”, but not for building, created an easement or a contractual licence. If the grantee of the rights had acquired an easement, the owner of the Masons Arms public house near Kensal Green tube station could continue to use adjoining land (which had remained in the ownership of the railway company until 2001) as a beer garden. But, if the grantee of the rights had been granted a contractual licence, the public house would lose its beer garden, leaving it available for exploitation by a developer. The owner of the public house pointed to the fact that the rights were granted in a conveyance. In addition, the draughtsman had used words such as “grant” and “easement”. Unfortunately, he had also adopted the phraseology of a “licence” when creating the rights granted.  The judge noted that the totality of the language suggested the grant of permission, as opposed to a substantive grant, and decided that the railway company had granted a licence, and not a proprietary interest. It was also relevant that the rights granted were not tied to, or expressed to be for the benefit of, the land now occupied by the Masons Arms. It would not be fatal to the creation of an easement if it were clear from all the circumstances that there was, in fact, a dominant tenement. But there was nothing to indicate that the rights were linked to the public house land. Consequently, they did not qualify as an easement. Was the right to grow produce (which is how the judge construed the right to enjoy the land as a garden ground and for agriculture) capable of constituting an easement? The judge noted that the category of easements is never closed. However, there were no previous cases in which rights to grow produce have been recognised as easements – and in Clos Farming Estates v Eaton [2002] NSWCA 389, an Australian case, a claim to an easement to grow grapes in order to produce wine had failed. In the judge’s view, the right was not sufficiently akin to other rights commonly recognised as easements to be capable of forming the subject matter of a grant. And, if a limited right to cultivate was not an easement, the judge did not consider that a wider right to use the land for other purposes, except building, would qualify as an easement either. Consequently, the parties to the 1855 conveyance had created a contractual right – not an easement. This meant that the owner of the public house was trespassing on, and would have to vacate, the beer garden land, and was liable for damages until it did so. Allyson Colby is a property law consultant