Chapter 11 - Obtaining rights over the land of another - Easements and profit

Question 1

What is an easement?

Answer 1

A property right which one person has over another person’s land…•For an easement to exist, both parties must have estates in land. The party who benefits from the easement is known as the dominant owner The party whose land suffers the detriment (or burden) of the easement is the servient owner.

Question 2

Characteristics of an easement

Answer 2

•To be capable of being an easement, four characteristics must be satisfied, as established in Re Ellenborough Park (1956)

Question 3

Characteristics of an easement (4)

Answer 3

There must be a dominant and servient tenement.The right claimed must benefit the dominant tenement.There must be diversity of ownership and/or occupation.The right claimed must be capable of forming the subject matter of a grant.•The right claimed must be similar to existing easements.•There must be no positive requirement for the servient owner to expend money, except in the case of easements to maintain fences.•Easements must also be sufficiently definite.

Question 4

There must be a dominant and servient tenement

Answer 4

•There must be two pieces of landone of which takes the benefit of the rightone of which is subject to the burden of the right.

Question 5

The right claimed must benefit the dominant tenement

Answer 5

•It must be of benefit to the land as opposed to being of purely personal or commercial benefit to the occupier. A useful test to determine whether or not this is so is to ask if the right would make the land more valuable if sold.

Question 6

Hill v Tupper (1863)

Answer 6

• A claimant claimed the right to use a mooring for the purpose of letting out pleasure boats for hire. this right… benefit the dominant tenement?
• The court held that this right did not benefit the dominant tenement; it was a personal benefit to the claimant. •In P & S Platt Ltd v Crouch (2003), however, the Court of Appeal decided that the right to use river moorings was capable of being an easement.

Question 7

Moody v Steggles(1879)

Answer 7

The right to place a pub sign on another’s land…the right… benefits the land?

•In the right to place a pub sign on another’s land was held capable of being an easement. •This was because the pub had been there for a long time & thus the land & its use had been inextricably linked. Since the easement benefits the land itself, rather than the landowner, s 62 LPA 1925 provides that the easement will normally be sold with the land.

Question 8

There must be diversity of ownership and/or occupation

Answer 8

•Different people must own & occupy the dominant and servient tenements. A landlord can, however, claim an easement over their tenant’s land and vice versa because diversity of occupation is sufficient.

Question 9

The right claimed must be capable of forming the subject matter of a grant

Answer 9

•The right must be capable of being expressed in a written document & must meet the following requirements: i.The right claimed must be similar to existing easements.ii.There must be no positive requirement for the servient owner to expend money, except in the case of easements to maintain fences.iii.Easements must also be sufficiently definite

Question 10

The right claimed must be similar to existing easements

Answer 10

•Common easements include:orights of wayorights of tenants to use common parts such as corridorsorights of light through defined aperturesorights to run cables & pipes under or over landorights of drainage & orights of support where adjoining premises provide structural support for one another

Question 11

Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd (2018)

Answer 11

• The dominant tenement was used as timeshare apartments. These are typically occupied for holidays by people seeking recreation, including sporting & leisure activities, & so the grant of rights to use an adjacent leisure development was of service, utility & benefit to the timeshare properties. Such activities are for the more enjoyable or full use of the dominant land.Whether the rights accommodate the dominant tenement?whether recreational & sporting activities could amount to easements?
• The argument that the easements were limited to those recreational facilities constructed at the time the villas were built, that is, 1981, was dismissed by the court. •The easement was regarded as a single right to use such recreational & sporting facilities as might be provided from time to time within the estate.•Lord Briggs said: “the grant of purely recreational rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well-settled conditions,” as laid down in Re Ellenborough Park (1956)

Question 12

There must be no positive requirement for the servient owner to expend money

Answer 12

•Except in the case of easements to maintain fencesThis exception appears to be limited to obligations on farmers to maintain fences for stock-proofing purposes- Crow v Wood (1970

Question 13

Easements must also be sufficiently definite

Answer 13

There can be no easement to a general right to a view- Aldred’s Case(1610) or to general light, for instance, in a garden.•Protection of a view and light might be possible by use of a restrictive covenant. A right of way must exist along a defined track, path or road, and a right to light must be through a defined opening.

Question 14

There must be no exclusive possession

Answer 14

•The dominant owner cannot exclude the servient owner from the land.•Easements of storage may create problems if the storage is to the exclusion of the landowner

Question 15

Wright v Macadam(1949)

Answer 15

The use of a garden shed for storage of coal….

Capable of being an easement…

Question 16

Grigsby v Melville(1973)

Answer 16

• A claim to store goods in a cellar…it amounted to exclusive possession…
• Failed as an easement…

Question 17

Copeland v Greenhalf (1952)

Answer 17

• A wheelwright claimed an easement of a strip of land close to his workshop on which he stored wheels, vehicles & various other items… the right claimed was too wide & extensive…
• Failed as an easement…

Question 18

Batchelor v Marlow(2003)

Answer 18

• The right to park & store cars… it gave the dominant owner exclusive possession of part of the servient tenement..
• Was not capable of being an easement

Question 19

London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (1994)

Answer 19

• The right to park cars on the servient land… the servient owner still had seasonable use of their land
• Was capable of being an easement…

Question 20

Legal easements

Easements are legal interests under s 1(2) LPA 1925 provided that they are:

Answer 20

•for a term equivalent to a legal estate, i.e., a fee simple absolute in possession or a term of years absolute &•in the form of a deed if created by express grant or reservation.

Question 21

Protection of legal easements

Unregistered land

Answer 21

Legal easements bind buyers regardless of notice in unregistered land

Question 22

Protection of legal easements

Registered land

Answer 22

Legal easements are registrable & implied legal easements are interests which are overriding in registered land

Question 23

Equitable easements

Answer 23

An easement for any period less than a fee simple absolute or term of years absolute or one created other than by deed or statute, must be equitable. •Note that an implied grant or easement created by long use (by prescription) will be legal. Oral arrangements cannot create equitable easements. Remember that an equitable interest in land must be created in writing under s 53(1) LPA 1925. Examples- •easements for life•easements where formalities have failed, i.e., are not created by deed.

Question 24

Protection of equitable easements

Unregistered land

Answer 24

An equitable easement created on or after 1 January 1926 must be registered at the Land Charges Registry as a Class D(iii) land chargeEasements created before that date are subject to the doctrine of notice

Question 25

Protection of equitable easements

•Registered land

Answer 25

Equitable easements should normally be protected by entry of a notice on the register

Question 26

Acquisition or creation of an easement

Reservation

Answer 26

where a person reserves rights overland which they sell

Question 27

Acquisition or creation of an easement

Grant

Answer 27

where one person agrees that another should have rights overland which they retain

Question 28

Reservation

Answer 28

•Reservation of an easement occurs if an owner sells part of their land, but retains the right to use an easement over the land sold.As with express grants, easements reserved may be legal or equitable.In the absence of express reservation of the easement by deed, one can only be implied by means of necessity or common intention.

Question 29

Grant of easements

Answer 29

Express

Implied
Necessity Common IntentionRule in Wheeldon v Burrows (1879)S 62 LPA 1925

Presumed grant or prescription
Common LawDoctrine of lost modern grantPrescription Act 1832

Question 30

Express grant

Answer 30

If the easement is to be recognised by law, it must be created by deed under s 52 LPA 1925

& If not created in this way, it will be equitable;

be equivalent to a legal estate. •such an equitable easement must, at the very least, be in writing (s 53(1) LPA 1925).

Question 31

Implied grant

Answer 31

Easements created by implied grant or prescription (long use) are legal easements. Under the rules on implied grant & prescription a claimant has the burden of proving the existence of the easement.
If there is sufficient evidence to that effect, the court will declare that the easement exists, and it will be deemed to be a legal easement despite the fact that it is not created by deed & is not even in writing.

Question 32

Necessity

Answer 32

An easement will be implied if absolutely necessary.

Question 33

Nickerson v Barraclough(1981)

Answer 33

Where land is landlocked & there is no other access without a right of way…

Easement…However, mere inconvenience is insufficient to create an easement of necessity…

Question 34

Titchmarsh v Royston Water Co Ltd(1899)

Answer 34

• Where vehicular access to the highway was possible, albeit down a sheer 20-foot embankment…
• There was no easement of necessity…

Question 35

Sweet & Another v Sommer & Another(2004)

Answer 35

•Where the only alternative would be to destroy a barrier (in this case, a workshop) on part of the retained land…

An easement of necessity mayarise …

Question 36

Common intention

Answer 36

•There may be an implied easement if the parties to the transaction must clearly have intended this. Nevertheless, such an easement must obviously be implied.

Question 37

Liverpool City Council v Irwin(1977)

Answer 37

•There was no express grant of an easement in favour of the tenants to use staircases & lifts to reach their ninth & tenth storey flats.

Such an easement must obviously be implied.

Question 38

Rule in Wheeldon v Burrows(1879)

Answer 38

•A person who divides their land into two & then sells one part always needs to be careful that implied easements are not being created in favour of the buyer.

Question 39

Wheeldon v Burrows(1879)

Answer 39

Unity of ownership & occupation One person must own & occupy the whole of a piece of land

Exercise of quasi-easements - original owner must have exercised rights which would be easements but for the fact of common ownership and occupation. As a person cannot have an easement over their own land, this is known as a quasi-easement.

Continuous & apparent - he right must, to some extent, be obvious, e.g., a right of way may be obvious to someone inspecting the land, as there may be some defined track.

Necessary to reasonable enjoyment of the land - The right must render use of the land more convenient.

If the above requirements are met, the quasi-easements will become actual easements

Question 40

S 62 LPA 1925

Answer 40

S 62 is used to create new easements in two different waysWhere there is diversity of ownership & occupationWhere there is NO diversity of ownership and occupation

Question 41

Where there is diversity of ownership & occupation

Answer 41

Converting mere permissions into easements… •This is an important means whereby tenants may acquire an easement over land retained by their landlord. As well as diversity of ownership and occupation, two additional requirements must also be met for a new easement to arise under s 62: •permission must be given to the occupier to use the easement & •there must be a conveyance (including a lease), i.e., the transfer of legal title to the occupier.

Question 42

Wright v Macadam(1949)

Answer 42

he landlord had given the tenant permission to use a shed for storage purposes. This was originally a licence (permission) only. The tenant’s lease was renewed, i.e., there was a grant or conveyance of a new lease, •Did this conveyance convert the licence into an easement?

The tenant successfully claimed an easement of storage in a garden shed on land retained by the landlord as a result of s 62. The requirement for diversity of occupation means that s 62 claims have been applied primarily to tenants claiming rights over land retained by the landlord

Question 43

Where there is NO diversity of ownership & occupation

Answer 43

Following Wood v Waddington (2015) there is now a further method of creating an easement under s 62. •No diversity of ownership & occupation is required. This case says that an easement can be created under s 62 provided the following conditions are met: •the right is continuous and apparent & •the use must have been for the benefit of the land conveyed.

Question 44

Presumed grant or prescription

Answer 44

Prescription implies that if a person can prove that for a particular period (usually 20 years) they have exercised a right which has the characteristics of an easement, they may be presumed to have an easement by prescription.

This will be deemed to be a legal easement despite the lack of deeds.

This is regarded as a legal fiction. If a person can show acquisition of an easement by prescription, it is presumed that some grant of a legal easement occurred in the past.

Question 45

Requirements

Answer 45

.There must have been continuous user (the legal term for usage) ii.user must have continued for the prescriptive period - generally 20 or more yearsiii.user must be by, or on behalf of, and against, the fee simple (i.e., freehold) iv.there must be user as of right. This means that it must have been exercised a)without force, b)without secrecy c)without permission.

Question 46

Winterburn v Bennett (2016)

Answer 46

In the erection of a clearly visible sign saying: “Private car park. For the use of (Conservative) Club patrons only” •Easement?

It was sufficient to show that the landowners were not acquiescing in the acts of trespass committed by customers & delivery drivers to a fish & chip shop. The claimants were unable to show that they had acquired the easement “as of right”. Entering the land was not regarded as peaceable where a sign clearly indicated that parking was not allowed. It was not necessary to show that they used force or committed acts of damage to gain entry. •The Court of Appeal thus decided that a landowner can prevent someone acquiring rights over land by clear signage alone.

Question 47

Methods of prescription

3 different methods of prescription

Answer 47

Common lawDoctrine of lost modern grantPrescription Act 1832

Question 48

Common law

Answer 48

At common law, for an easement to arise by prescription, it had to have been enjoyed since time immemorial (1189). •The courts have adopted the rule that, if user as of right for 20 years or more is shown, it will be presumed that user has continued since 1189. If it can be shown that at any time since 1189 the easement could not have existed, e.g., the land was owned by one person, an easement cannot be acquired by prescription at common law.

Question 49

Doctrine of lost modern grant

Answer 49

Under the doctrine of lost modern grant, where the easement must have been used for 20 years. In such cases, the courts may make a (fictional) presumption that the easement was granted, but that the deeds were lost.

Question 50

Prescription Act 1832

Answer 50

nder the Prescription Act 1832, where the easement must have been used for at least 20 years. •If 40 years’ user can be shown, however, the right is deemed to be absolute and indefeasible (cannot be made void).

To claim an easement under the doctrine of lost modern grant, the 20-year period can be any period, whereas to claim an easement under the Prescription Act 1832, the 20-year period must be “next before action”, that is, run for the 20 years immediately preceding the action.

Question 51

Profits à prendre

Answer 51

profit à prendre is a right to enter on to land of another person & take part of the produce or soil. Unlike an easement, the owner of the profit does not need to have an estate in the land itself.•Profits include mining rights, fishing rights, shooting rights, rights of grazing, and rights to collect wood or dig for peat.Profits can be acquired in similar ways to easements. •They cannot be acquired by necessity or under the rule in Wheeldon v Burrows (1879)•The prescription period under the Prescription Act 1832 is usually 30 years.

Question 52

Terminating easements

Answer 52

By statuteBy release•This could be express release or implied release. There has to be an intentional abandonment of the easement for there to be an implied release.By unity of ownership and possession•If the dominant & servient tenements come into the ownership & possession of the same person, any easement is extinguished.

Question 53

Pg 35 creation of easements slides

Answer 53

Pg 35 creation of easements slides

Question 54

Protecting easements

Answer 54

Express legal easements by grant or reservation which burden the land will be found in the charges register. •Easements which benefit the land will be found in the property register.Implied legal easements by grant or reservation (e.g., those implied by necessity, common intention etc, or by prescription) are interests which override registered dispositions, so will not be found on the register. •If entered on the register, these easements will cease to be overriding as they will become obvious on an inspection of the register.