express provisions for any easements that they want. The law should rarely imply easements in their favour”. Discuss.
QUESTION: 2) “There is not equity in this court to perfect an imperfect gift” – Turner LJ in Milroy v Lord (1861) – How accurate is this statement in current English Law?
It is suggested that ‘the vendor and purchaser of land should make express provisions for any easements that they want’ and that ‘the law should rarely imply easements in their favour’. In order to evaluate this assertion it is first necessary to establish the characteristics of an easement, thus facilitating a discussion as to the various means by which easements may be acquired with particular reference to their acquisition by implied grant or reservation.
An easement is a right which makes the use of a person’s land more convenient or which accommodates or benefits it in some way. As it is a right that is imposed over someone else’s land, it follows that it imposes a burden upon that land. Easements are also proprietary interests in land, meaning that the benefit and burden may pass to subsequent owners of the two pieces of land involved. The four characteristics of an easement were defined by the Court of Appeal in Re Ellenborough Park. Firstly, there must be a dominant and a servient tenement (the dominant tenement carries the benefit of the easement and the servient tenement carries the burden); secondly, the easement must accommodate, or benefit, the dominant tenement; thirdly, the dominant and servient tenement must not be both owned and occupied by the same person; finally, the right must be capable of forming the subject matter of a grant – that is, the person who grants the right must have the power to do so, the grantee must be capable of receiving it and the nature of the right claimed must be sufficiently clear and the owner of the servient tenement must not be deprived of too many of their rights.
Having described the essential characteristics of an easement as involving the imposition of rights over someone else’s land, it follows that the most obvious way in which such an easement can be created is where the owners of two neighbouring pieces of land agree that one of them is to have an easement over the land of the other. This is the manner in which easements are acquired in the vast majority of cases. Indeed, most express grants of easements occur when a person sells part of the land that they own; the vendor of the parcel of land and its purchaser making express provisions for the easements that they want and specifically agreeing the rights that are to subsist over the servient tenement.
In terms of formalities, section 1(2) of the Law of Property Act 1925 states that an easement is a right ‘that is capable of subsisting or of being conveyed or created at law’, that is, capable of being a legal interest, and can only be legal if ‘for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute’. Moreover, section 52 of the Law of Property Act 1925 provides that a conveyance of land or of an interest in land is void for the purpose of conveying or creating a legal estate unless it is made by deed. Therefore, legal easements must be granted by deed. Easements may also be expressly reserved; where a vendor is selling part of their land, they may wish to reserve or keep back certain rights in their favour. Again, this involves a clear and express agreement between the vendor and the purchaser as to the rights that are to be enjoyed over the servient tenement. It is also necessary to consider the protection of easements. When land is conveyed under the unregistered system, the legal estate passes immediately on completion of the transaction; if conveyance is by deed and contains the grant of an easement, the easement takes effect immediately as a legal easement and binds the whole world irrespective of notice. The owner of the dominant tenement may enforce the right against the owner of the servient tenement. However, where title to the land is registered, section 27(1) of the Land Registration Act 2002 provides that the disposition of a registered estate that is required to be completed by registration does not operate at law until the registration requirements are met; this includes the express grant or reservation of an easement since it falls within section 1(2)(a) of the Law of Property Act 1925. Therefore, express grants of easements must be registered, and once registered will bind successive owners of the servient land. Until registration, the easement is merely an equitable easement. Registration will take place in the Property Register of the title to the dominant tenement and the Charges Register of the title to the servient tenement.
In the majority of cases, therefore, ‘the vendor and purchaser of land should make express provisions for any easements that they want’: this enables a clear agreement to be reached between the parties as to the precise nature of the easements granted or reserved, and enables both parties to be certain as to their position. In an ideal world, all easements would be expressly granted or reserved; by examination of the deed of conveyance or entries on the register of title (depending on whether title to the land in question is registered or unregistered) any prospective purchaser should be able to establish what easements benefit and burden a property. However, there are certain circumstances in which the law will imply an easement.
The two general rules relating to the acquisition of easements by implied grant or reservation were identified by Thesiger LJ in Wheeldon v. Burrows. The first rule relates to the rights which, in the absence of any express provision, will be acquired by the purchaser over the vendor’s retained land. It states that the purchaser of land acquires all those continuous and apparent easements, or easements that are necessary to the reasonable enjoyment of the property sold, and which the vendor was using immediately prior to the sale. The second rule applies where a landowner sells part of his land and fails expressly to reserve any rights over the land that he has sold; in this case the vendor is not normally able to claim an implied easement. Thesiger LJ stated that these rules were based on the maxim that ‘a grantor shall not derogate from his grant’; in other words ‘a grantor having given a thing with one hand is not to take away the means of enjoying it with the other’. The requirement for a ‘continuous and apparent’ easement has been held to be some feature to be present on the servient tenement which would be apparent on an inspection and which has some degree of permanence, such as drains (in the case of a implied drainage easement) or a path. There are some exceptions to the second rule in Wheeldon v. Burrows. The first of these are easements of necessity; for example, where a purchaser buys land to which there is no access except by crossing the land of the vendor, and there is no express grant of a right of access, then an easement of necessity will be implied to prevent the purchaser from becoming landlocked. However, the purchaser will only be entitled to what is necessary and not that which is merely convenient; the right will be limited to that which was necessary at the time of the grant and will not give the purchaser a right for all purposes. There may also be other exceptions to the rule that a person may not derogate from his grant: for instance in Pwllbach Colliery Co. Ltd v. Woodman, Lord Parker considered that an easement will also be implied if it is necessary to give effect to the common intention of the parties. However, it is necessary to show that the land was meant to be used in a particular way and that the parties must have intended there be a right granted in order that it may be so used.
Having considered the circumstances in which easements may be expressly granted or reserved and may be acquired by implication, it is clear that, as suggested, the vendor and purchaser of land should make express provisions for any easements that they want. This would provide certainty to all persons interested in a particular piece of land as to the nature of the easements with which it is burdened or benefited. However, it is also clear that, since not all easements are the subject matter of an express grant, the law must intervene to imply easements under certain circumstances. This is done to prevent unfairness to purchasers who could otherwise, for example, find themselves landlocked or without drainage facilities. It is also true however, that the law will ‘rarely imply easements’; seeking to limit this to those in current usage that are necessary for reasonable enjoyment, limiting easements of necessity to exclude rights which would be merely convenient and only exceptionally implying other easements to give effect to the common intention of the parties. Therefore, the statement provided represents a very good encapsulation of the current law.
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This essay will explain the maxim ‘equity will not perfect an imperfect gift’ and consider situations that suggest that this maxim is not a wholly accurate statement in current English law. In order to do so, the essay will explain the operation and rationale of the maxim before considering situations in which it is held not to be applicable.
The rule that equity will not perfect an imperfect gift is a particular application of the more general principle that equity will not assist a volunteer. A volunteer is someone who has not provided consideration for something of value. This maxim is applicable to gifts as these are gratuitous transfers of property from the original owner (offeror) to another (offeree) who provides nothing in return. As this is an unequal bargain, equity will not enforce the gift if the offeror has a change of heart or is otherwise prevented from completing the transfer of property. An agreement to give a gift is not a binding arrangement because of its one-sided nature so the offeree cannot invoke equity to complete the gift as there is no obligation upon the offeror to honour the promise therefore no inequity that needs to be remedied if the offeror reneges upon the agreement.
In Milroy v. Lord, the court recognised three situations whereby equity would recognise a gift: firstly, an outright transfer of legal title to the offeree; secondly, an outright transfer to trustees to hold on trust for a beneficiary and, finally, a self-declared trust (which must satisfy the requirements of formality and certainty). For a gift to exist, Turner LJ stated that:
To render a voluntary settlement effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary in order to transfer the property and render the settlement binding upon him.
In other words, the law will only recognise a gift if the offeror has complied with all the legal requirements needed to transfer property. If the property that is the subject matter of the gift is straightforward, it can be transferred simply by rendering it into the possession of the offeree. However, more complex gifts of land and property that lacks a physical presence cannot be transferred without the completion of formalities. This means, for example, that gifts of land must be transferred by conveyance, equitable interests may only be transferred in writing and shares require the completion of an instrument of transfer.
If the offeror has set in motion measures to transfer the property in question but has failed to complete the necessary formalities, either because he has died or because events have intervened in some way to prevent their completion, the property becomes the subject of an improperly constituted trust. The question then arises as to whether it is equitable for the courts to complete the transfer of the property that is the subject matter of the gift which is where the maxim that equity will not perfect an imperfect gift comes into operation.
In Re Rose, the requirement that the offeror must have done all that is required was questioned and an exception arose to the rule that equity will not perfect an imperfect gift. Here, it was held that if the offeror had done all that could be expected of him then the transfer of property would be complete. This was an acknowledgement by the courts that the transfer of property such as shares that required the completion of certain formalities could be left incomplete by dint of the action (or inaction) of a third party. As such, it could not be said that the offeror had not done all that he could to complete the transfer thus it would not be inequitable for equity to intervene. The notion that equity would complete an incomplete transfer if the failure to conclude was not due to the default of the offeror and occurred once the matter was out of his hands was confirmed in Hunter v. Moss where Dillon LJ stated that such a situation was better viewed as a completed gift without waiting for registration of the transfer.
As these cases illustrate, an incomplete transfer where the offeror has done all that it is reasonable and possible for him to do personally will be completed by the intervention of equity if the failure to complete the transfer is attributable to some other person or factor. Therefore, the principle in Re Rosewould facilitate the transfer of property as gifts even if statutory formalities were not complied with provided that this failure was not due to the default of the offeror. Although it has been described as legal sleight-of-hand, the principle in Re Rose is an exception to the rule that equity will not perfect an imperfect gift. whereby an intention to transfer property that is maintained until the death of the offeror but which is never completed in their lifetime is deemed to be completed if the property is inadvertently transferred to the offeree after the death of the offeror, i.e. because the offeree is appointed as executor. In many ways, this is not a true example of equitable perfection because the property has passed to the offeree, albeit accidentally, thus the gift is complete. Strictly speaking, this is an example of equity standing aside (rather than intervening) and permitting the rule of fortuitous vesting apply but, despite this, it has been applied in subsequent case law as an example of equity perfecting an imperfect gift thus must be so regarded.
A further situation that could be seen as an exception to the rule that equity will not perfect an imperfect gift concerns gifts made in contemplation of death (donationes mortis causa). These have been described by Buckley J as being of an amphibious nature as they are midway between inter vivosgifts and testamentary provisions. A donatio mortis causa is a gift made in contemplation of death on the understanding that it will be complete only once the offeror has died and there must be some evidence of the offeror parting with dominion of the property in question. This is an imperfect give as it cannot be completed by the offeror as it will only take effect after his death, when it is impossible for him to take the steps necessary to transfer the property to the offeree. Nonetheless, it is a recognised exception to the rule that equity will not perfect an imperfect gift and it can be seen as being somewhat analogous to the principle in Re Rose in that it is a situation in which the offeror has done all that he can do to complete the death thus it would be inequitable to allow his death to defeat his intentions regarding the transfer of his property.
The final example of the operation of equity to perfect an imperfect gift is proprietary estoppel which arises if the offeree has acted to his detriment, by the expenditure of money or otherwise, in reliance with a misrepresentation by the offeror. The rules concerning the operation of proprietary estoppel in relation to imperfect gifts are set out in Willmott v. Barber where it was held that the offeree must have made a mistake about his legal rights or entitlements and he must have acted in response to this mistaken belief in a way that amounts to a detriment. The offeror must be aware of the mistaken belief of the offeree and have nonetheless failed to prevent the offeree acting to his detriment by bringing the true facts to his attention. Here, equity intervenes to complete an incomplete transfer on the basis that the conduct of the offeror, in allowing the offeree to continue to operate under a misapprehension and to expend money (or other detrimental reliance) is unconscionable. For example, in Dillwyn v. Llewelyn, a father purported to transfer some land to his son although he knew that the transfer was ineffective as the transfer was not contained in a deed. Believing himself to be the owner of the land, the son spent some 14,000 on erecting a dwelling on the land with the full knowledge and encouragement of his father. The requirements of proprietary estoppel were satisfied thus the court intervened to complete the transfer of property to the son. Here, although the effect is to perfect an imperfect gift, the intervention of equity is founded on the unconscionable behaviour of the offeror.
Although these four exceptions illustrate that the rule that equity will not perfect an imperfect gift is not absolute, they are exceptions based upon deeper and more fundamental equitable principles such as the prevention of unconscionable behaviour and maxims such as ‘equity regards as done that which ought to be done’. Overall, equity intervenes to achieve equitable outcomes thus deviation from a principle in the interests of fairness is only to be expected.
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