Can a property owner acquire a right to hang, open and close gates?This analysis was first published on Lexis®PSL Property. Lexis®PSL subscribers can enjoy further expert guidance by accessing some of the links below. If you are not a subscriber, you can take a free trial here. In 1977, the owner of a plot of land with a house on it (40) built a bungalow (40A) in a paddock forming part of a large back garden. He moved into 40A and sold 40. The current owners of 40 are Mr and Mrs Bradley and of 40A are Mr and Mrs Heslin. The owner of 40A retained a driveway. They gave the owners of 40 a right of way over the part of the driveway which ran from the road, alongside and into 40.The original owner of 40, when it was sold, carried out works including surfacing the driveway. The result was that a triangular sliver of land forming part of 40 was incorporated into the surface of the driveway. The entrance of the driveway on to the road was shifted slightly onto land forming part of 40. The northern pillar at the entrance to the driveway—to the judge’s eye—was built on the triangular sliver of land.The 'consensual, co-operative and neighbourly approach' of the original owners regarding use of the driveway did not survive the changes of ownership.The Bradleys closed the gates between the entrance pillars rendering 40 secure, but blocking the driveway affording access to 40A. Therefore, the Heslins had to stop on leaving or entering 40A to open the gates.The judge observed that ‘Sensible neighbours would have sat round a table and worked out either a regime for closing the gates at agreed hours (the one party suffering a diminution in security and the other an increase in inconvenience) or the installation of remotely operated electric gates (which might have cost £5,000)’.There were some desultory attempts at exploring the possibility of electric gates, but (when they came to nothing) Mr Heslin simply padlocked the gate open and refused to allow the Bradleys to shut it. The Bradleys commenced proceedings for declarations as to their right to use the gates and for an injunction requiring the Heslins to remove the padlock and restraining them from interfering with it.What did the court decide?The High Court decided that:the Bradleys acquired title to the northern pillar by adverse possession against the true owner of the triangular sliver of land by the beginning of 1992if it was wrong and the northern pillar was built on the driveway (and so on land originally within the ownership of 40A), then the Bradleys owned the northern pillar as the result of the operation of a proprietary estoppelthe gates that hang between the pillars belonged to the owners of 40—the original owner of 40 paid for them and they hung between pillars which belonged to him (the southern pillar was on land forming part of 40) and had belonged to successive owners of 40This left the main issue between the parties was when (if ever) could the gates be closed?The court found it was not intended that the gates should be purely ornamental. They were intended by the original owners of 40 and 40A to be functional. There was no direct evidence of agreement to that effect, but the fact they were used as soon as they were erected could be relied on as evidence of the understanding or 'tacit' agreement that must have been reached.The erection of gates across a shared way was a serious matter, but 'sometimes the law recognises the right'.Was the right to hang and close a gate capable of being an easement?The court confirmed the right to hang and close a gate was capable of being an easement and so could be acquired by grant or prescription or declared to exist by virtue of a proprietary estoppel. There was no reason why the right to occupy airspace by hanging a gate over the land forming a driveway was incapable of being an easement that accommodated the dominant tenement. It did not amount to a claim to the whole beneficial use of the driveway, nor did it render the Heslins' ownership of the driveway illusory.However, on the facts, the Bradleys had not acquired a right to maintain gates across the entrance and a right to open and close those gates at all times and for all purposes connected with the enjoyment of 40—either by prescription or under the doctrine of lost modern grant.A right 'of some other origin'However, the court confirmed that did not mean that any closing of the gates lacked legal foundation. Nor did it mean usage which was insufficient to establish a right 'might not evidence a right having some other origin'.The pillars and the gates belonged to 40. At the time the gates were erected they were intended to be used and were in fact used. If the original owner of 40A had prevented the original owner of 40—who had constructed the gates—from closing them 'the court would have declared [the owner of 40] entitled to the minimum right to do equity'.The minimum right to do justice would have been a right to close and open the gates for all purposes connected with the reasonable enjoyment of 40 provided such use did not substantially interfere with the reasonable enjoyment of 40A (the qualification arising either from the court's interpretation of the likely understanding or from a restriction upon the relief the court was willing to grant).The Heslins argued that it was not possible to have an equitable easement subject to the qualification that it could not be used in such manner as to occasion substantial interference with the servient owner's use of his land. The court disagreed. Easements (whether deriving from express or implied grant or from usage) frequently embodied some natural limit so the court could say that a particular usage was excessive because it increased the burden on the servient tenement (though difficult questions could arise as to whether the excessive use arose from an increase in intensity of use or from a change in the nature of use).Equally, if the owner of the servient tenement is free to exercise his ownership rights to such an extent as does not substantially interfere with the easement he has granted, there was no reason in principle why a grant could not be made in terms allowing the owner of the dominant tenement to exercise his easement feely, to such an extent as did not substantially interfere with the servient owner's residual rights. In each case, 'the line will have to be drawn by reference to the needs of reasonable owners of the respective rights at the time of their creation, not by reference to the particular personal characteristics of the respective owners at the time the dispute arises'.ConclusionSince there was 'no serious argument that estoppels binding between [the original owners] were not binding between their successors' the court decided that the Bradleys had a right to close and open the gates for all purposes connected with the reasonable enjoyment of 40—provided such use did not substantially interfere with the reasonable enjoyment of 40A.Mr Heslin was not entitled to padlock the northern gate open, but nor were the Bradleys entitled to a declaration that they were entitled to an easement permitting the opening and closing of the gates at all times and for all purposes.The court invited the parties’ counsel to agree the terms of an order, but—acknowledging 'it would be unhelpful simply to leave the parties with their rights declared without indicating how they might be applied on the ground in daily life'—gave its view that until such time as 'adequate opening arrangements' were put in place, it would not be a substantial interference with the rights of the owners of 40A if the gates were closed:from 11.00pm until 7.30amwhile they were staying away from 40Aon a few additional days when there was a heightened risk of intrusion from revellerswhen there was a particular need to keep someone or something within 40 and away from the roadBy 'adequate opening arrangements', the court meant an electric system that could be operated from within the car or from within 40A such that the gate could be opened as a car approached it and without the driver having to get out.What are the lessons for lawyers?The first point to note is that the basis upon which the court found the Bradleys to have acquired the right is unclear. It referred simply to the possibility of 'a right having some other origin'. While not spelt out in the judgment, the court may have decided the Bradleys had acquired an implied easement.The implied grant of an easement arises out of an express grant or disposition of the servient or dominant tenement (or the simultaneous disposition of both). An easement can only be implied where both the dominant and servient tenements have been in common ownership—which was the case here.One of the categories of implied easement is an easement of ‘intended use’.Note: Subscribers to LexisPSL Property can see Practice Note: Implied easements—common law. This may be what the court had in mind when it confirmed that ‘At the time the gates were erected they were intended to be used…’ [emphasis added].In any event, the practical advice for lawyers is:DocumentationClients should be advised to clearly document arrangements of this nature at the outset to avoid disputes. It was not only the right to hang and close the gate that was undocumented, the position of the boundaries was unclear. The judge noted that when 40 and 40A were originally separated, the conveyance, described 40 using the ‘hallowed but mutually stultifying formula’:'...which is for the purpose of identification only more particularly delineated and edged red on the plan annexed...'It always pays to define boundaries clearlyNote: Subscribers to LexisPSL Property can see Practice Note: Boundary determinationAvoiding the courtsIf this is not done and a dispute does arise, clients should be encouraged to do everything in their power to resolve the dispute without resort to legal action. On this point, the last word should go to the judge:'Rather to my surprise I find myself trying a case about a pair of gates in Formby: surprise on at least two counts. First, that anyone should pursue a neighbour dispute to trial, where even the victor is not a winner (given the blight which a contested case casts over the future of neighbourly relations and upon the price achievable in any future sale of the property). Second, that the case should have been pursued in the High Court over 3 days. It is not that such cases are somehow beneath the consideration of the Court. They often raise points of novelty and difficulty and are undoubtedly important to the parties and ultimately legal rights (if insisted upon) must be determined. But at what financial and community cost?'