Chapter 15Business propertyenjoyed by the person who owns them in a physical
waythrough the senses are called choses (or things) in
possession.
Things which cannot be enjoyed by the person who
owns them in a physical way, but which, nevertheless,
are worth money, are called choses (or things) in action.
Examples are patents, copyrights, trade marks, shares
and cheques and the goodwill of a business. The value
lies not in the thing itself but the legal right to money
which it represents and the right to bring an action at
law to enforce or protect that right should this become
necessary.
Thus, if you have a fire in your business premises, you
will no doubt value your fire extinguisher (a chose in
possession), but you will find your insurance policy (a
chose in action) to be of greater value!
Easements and profits
We have already dealt with a property right called a lease.
This is a right to use another person’s land for a period
of time (usually) in return for the payment of rent. It is,
however, also possible to have ownership of other rights
over someone else’s property. These are typically known
as third party rights.
Easements
A may have what is called an easementover B’s land. This
might be a right of wayso that, for example, A could get
goods and services into his business premises by bring-
ing them across land belonging to another business.
An easement may also be a right to lightwhich would
prevent the owner of a neighbouring business from build-
ing on his own land but so close to A’s premises that A
was unable to use them without constant artificial light.
A could stop such a building from being put up by asking
the court for an injunction to protect his right of light.
The position as stated above was thought to be the law
on rights to light. However, in Midtown Ltd v City of
London Real Property Co Ltd; Josephv City of London
Real Property Co Ltd(2005) the High Court dealt a
severe blow to those trying to protect the right of light to
their property. Although the court accepted that the
activities of a developer would have a significant effect
on the claimant’s right of light to his property, the court
refused an injunction on the basis of the existence of
artificial light. The court did not say that the existence of
artificial light should alwaysprevent a claim for infring-
ment of a right to light but the case will no doubt be put
forward by defendants in future claims.
An easement may also be a right to supportfrom
other buildings. Where a house or business premises
are attached to other property, as with a semi-detached
house, one property needs the support of the other.
Thus, if B decides to pull down his semi-detached
premises which will leave A’s premises in danger of col-
lapsing, A can, once again, ask the court for an injunc-
tion to prevent B from doing this.
The case of Batchelor vMarlow(2000) is also of inter-
est in a modern context. In that case it was decided by
the High Court that the right to park cars on another’s
property could exist as an easement.
However, the Court of Appeal in 2001 reversed the
above decision of the High Court. The Court of Appeal
did concede that an easement of vehicle parking could
exist at law but not on the facts of the case. The right
claimed was to park such a large number of vehicles
that the owner of the land was virtually excluded from
his property. As the Court of Appeal said, if the adjacent
owner wanted such an extensive right, he would have to
buy the land or lease it for a period of time. Only in such
circumstances could he enjoy what amounted to exclus-
ive possession.
The High Court reached the same conclusion in Cen-
tral Midlands Estates Ltd vLeicester Dyers Ltd(2003)
where the High Court accepted that there could be an
easement of car parking. However, since the claim was
to park an unlimited number of vehicles anywhere on
the piece of land concerned being restricted only by
the space available, there could be no easement on the
facts because this would make the actual owner’s right
illusory.
It appears, however, that so long as the easement
claimed will not preventits use by the owner, the ease-
ment will be allowed, even if aparticular useto which
the owner wished to put the land is restricted. Thus, in
MulvaneyvGough(2003) the claimant, who owned a
group of cottages, claimed an easement in regard to a
communal garden at the back of the cottages over land
owned by the defendants. The defendants intended to
gravel the surface of the garden and use it as vehicular
access to the adjoining land which they owned. They
had already started to remove a flower bed. The Court
of Appeal ruled that the right to use the land as a com-
munal garden had been established by long use and was423