2. Easements Flashcards
EASEMENTS
Def: an easement is a legal right to use or enjoy another’s land in a particular way
Easements: CAPACITY
There are FOUR REQs for a right to be an easement (Re Ellenborough Park):
- a DOMINANT/SERVIENT TENEMENT
- it must ACCOMMODATE THE DOMINANT tenement
- must be NO COMMON OWNERSHIP/OCCUPATION of dominant/servient tenements
- RIGHT CLAIMED MUST LIE IN GRANT
Easements: Capacity - a DOMINANT/SERVIENT tenement
Two separate identifiable pieces of land must exist (London and Blenheim Estates v Ladbroke).
- The one burdened by the easement (Servient), AND
- The one benefitting from the easement (Dominant)
An easement must not exist IN GROSS. I.e. it must be attached to the land, it cannot be independent of it (Hawkins v Rutter)
Easements: Capacity - ACCOMMODATE THE DOMINANT TENEMENT
The easement must:
- DIRECTLY benefit the dominant land.
- – it will do so where it improves the land/its value, regardless of who the owner is. A right that merely benefits an owner will NOT suffice
- – if for business purposes, must benefit the land, not just the business (Moody v Steggles; Hill v Tupper)
- Dom and Serv tenements must have sufficient proximity to each other (Bailey v Stephens; Pugh v Savage)
Easements: Capacity - NO COMMON OWNERSHIP/OCCUPATION
This requires that the two pieces of land are owned or occupied by different people (Roe v Siddons)
- Landlord/tenant relationships are sufficient.
It is impossible to have an easement over one’s own land, though it is possible to possess quasi-easements that may become easements if the land is later divided (Roe v Siddons)
Easements: Capacity - RIGHT MUST LIE IN GRANT
the right must form the SUBJECT MATTER OF A DEED.
To be such, the following is req:
1. the grantor and grantee are capable of granting the easement
- both must have separate legal personalities
- grantor must own the servient land to a SUFFICIENT EXTENT so that they can grant the easement
- The subject matter of the easement must be capable of SUFFICIENTLY DEFINITE description in terms of its:
- NATURE: the right to enjoy a scenic view was held to be too vague (William Aldred’s Case)
- EXTENT: an easement to light through an undefined channel was not sufficiently clear (Harris v De Pinna) - The right must be judicially recognised
- the list of easements is not closed and new ones may be added as required (Dyce v Lady James Hay), as long as they are POSITIVE, NOT negative (Phipps v Pear; Hunter v Canary Wharf)
RECOGNISED easement rights:
- air in a defined channel (Wong v Beaumont)
- cause a nuisance (Sturges v Bridgman)
- display a sign (Moody v Steggles)
- Drainage through a defined channel (Atwood v Bovis Homes)
- Light (Kelk v Pearson)
- Parking (London and Blenheim Estates v Ladbroke)
- use a toilet (Miller v Emcer)
- rights of way (Borman v Griffith)
- storage (Wright v Macadam)
- Support (Dalton v Angus)
- Water in a defined channel (Race v Ward)
Easements: Capacity - ADDITIONAL FACTORS
In addition to the (Re Ellenborough Park) criteria, an easement must satisfy the following three factors
SERV owner must not incur expense (Regis Property v Redman)
- UNLESS reimbursed by dominant land owner (Rance v Elvin)
- Serv owner NOT required to carry out repairs in order for Dom owner to enjoy easement (Jones v Pritchard; Carter v Cole), but MUST allow Dom owner access to carry out any repairs necessary for their continued enjoyment of the easement (Access to Neighbouring Land Act 1992)
The interest must be exercisable as of right
- The Dom owner must NOT require Serv owner’s permission to exercise the right (Green v Ashco Horticulturalists)
The right must NOT amount to exclusive possession
- easement must not equate to Dom owner having exclusive possession over serv tenement (Grigsby v Melville; Copeland v Greenhalf)
- The law is currently unclear on whether exclusive possession means depriving the Serv owner of the beneficial USE (Batchelor v Marlow) or POSSESSION/CONTROL (Moncrieff v Jamieson) of their land. Although USE is arguably preferred (Virdi v Chana)
- a driveway over part of a garden will NOT necessarily amount to exclusive possession (Jackson v Mulvaney)
- A right to park a car is a recognised easement (London and Blenheim Estates v Ladbroke) provided that it does not affect the Serv owner’s R use of their land (Batchelor v Marlow)
- – an easement of one/4 car parking spaces was permitted (Hair v Gillman), an easement to park will NOT allow the parking of more vehicles than expressly permitted by the easement (Waterman v Boyle)
Easements: ACQUISITION
There are three methods of acquiring an easement:
- EXPRESS GRANT OR RESERVATION
- IMPLIED ACQUISITION
- PRESCRIPTION
Easements: Acquisition - EXPRESS GRANT OR RESERVATION
EXPRESS GRANT: where the owner of a piece of land expressly grants an easement over his land to another person
EXPRESS RESERVATION: where an owner expressly reserves an easement over a portion of the land which he is selling
- any express reservation will be interpreted STRICTLY AGAINST the reservation maker (Cordell v Second Clanfield Properties)
The procedure required for either will depend on whether they are LEGAL or EQUITABLE.
Easements: Acquisition - IMPLIED ACQUISITION
Where NOT expressly granted, an easement may be implied into a deed/contract in one of the following ways:
- BY NECESSITY
- BY COMMON INTENTION
- THE RULE IN (WHEELDON V BURROWS)
- – applies to grants of rights ONLY, not reservations
- USING s.62 LPA1925
- – applies to grants of rights ONLY, not reservations
Easements: Acquisition - Implied Acq: BY NECESSITY
The existence of the easement must be ESSENTIAL for the use of the Dom land for an easement to be implied out of necessity
It will NOT be sufficient for an easement to:
- increase enjoyment of Dom land
- make access to Dom land more convenient (Manjang v Drammeh cf. Adealon v Merton BC)
- be highly advantageous to the Dom tenement (Pryce v McGuiness).
- EG: Even drainage rights, whilst extremely advantageous and valuable, would NOT meet the threshold for an easement to be implied out of necessity.
Easements: Acquisition - Implied Acq: BY COMMON INTENTION
Where land sold for a specific purpose and an easement is required for that same purpose to be realised, the easement may be implied by a common intention.
REQ:
- The parties must have INTENDED to create the easement, the common intention must have existed at the date of the GRANT (Wong v Beaumont)
- The purpose must be sufficiently definite and particular (Pwllbach Colliery v Woodman)
- There must be no other explanation for granting the easement other than common intention (Peckham v Ellison)
The burden of proof to show common intention is HIGH, prior use ALONE may not suffice (Re Webb’s Lease)
Easements: Acquisition - Implied Acq: THE RULE IN WHEELDON V BURROWS
ONLY applies to grants, not reservations.
The Rule: on the sale or lease of part of the land OR an agreement to do so (Borman v Griffith), where the land belonged to a single owner IMMEDIATELY PRIOR to the sale, the grantee will receive all quasi-easements as FULL easements.
- if implied in to actual sale/lease, is LEGAL. If implied into the agreement of sale/lease, E.
- also applies where owner divides and sells ALL of their land. The new owners of each part will receive any quasi-easements applying to that part (Swansborough v Coventry)
- this rule may be expressly excluded using s.62(4) LPA 1925.
REQ, the quasi-easement must be:
- CONTINUOUS and APPARENT
- Continuous: the use of it must be regular. 11 months non-use prior to sale was sufficient to constitute regular use (Costagliola v English)
- Apparent: the right must be visible when the land is carefully inspected by a person who is ordinarily conversant with the subject (Pyer v Carter)
- – The right must be “clearly viewable” (Borman v Griffith)
- – Whether something is “apparent” should be judged using a common sense approach (Sovmots v SoS for the Environment) - NECESSARY for the R ENJOYMENT OF THE PROPERTY
- the easement must enhance the enjoyment of the land
- this is a HIGH threshold (Wheeldon v Burrows) - IN USE AT THE DATE OF THE TRANSFER
- the right must have been recently exercised before the transfer and are expected to be exercised in the near future
- the use must have been by the common owner (Kent v Kavanagh)
Easements: Acquisition - Implied Acq: s.62 LPA 1925
Applies to grants ONLY, not reservations.
It can be expressly excluded (s.62(4))
Under s.62, a conveyance will convert all quasi-easements, licences and other relevant rights into full easements (Wright v Macadam)
REQ:
A conveyance (transfer of ownership) of land
- this can either be the sale of a F/H on its owner he additional grant of a lease with the sale of the F/H
- a contract alone will NOT suffice (cf. the rule in Wheeldon v Burrows)
Diversity of Ownership
GR: before the conveyance takes place, there must be diversity of OWNERSHIP or OCCUPATION of the Dom and Serv tenements (Sovmots v SoS for the Environment; Payne v Inwood)
- Ex 1: rights to light (Broomfield v Williams)
- Ex 2: where the right is continuous and apparent (PandS Platt v Crouch; Alford v Hannaford, but cf. Campbell v Banks)
EGs: a tenant’s use of a coal shed on landlord’s land was converted into FULL easement upon renewal of the lease (Wright v Macadam), a tenant’s use of a driveway became an easement when they bought the F/H of previous L/H estate (International Tea Stores v Hobbs)
Easements: Acquisition - PRESCRIPTION
If an easement has not been expressly or impliedly granted it may be acquired if the right has been exercised over a period of time.
REQ
- The right must be exercised between owners of FEE SIMPLES (Landlords only)
- The right must have been exercised ‘as of right’. This means that the easement must NOT have been exercised
- – by force
- – in secrecy (Liverpool Corp v Coghill). The use need not be surreptitious, Serv owner must simply be UNAWARE of its use (Barney v BP Truckstops)
- – with permission. Implied permission will constitute permission (Odey v Baker)
- The right must have been exercised continuously (Mills v Silver)
There are three methods of Prescription:
- COMMON LAW PRESCRIPTION
- LOST MODERN GRANT
- PRESCRIPTION ACT 1832
