Easement

Question 1

Phipps v Pear [1964]

Answer 1

The court will not allow any new types of negative easement which restricts the burdened landowner’s use of the land.

Question 2

Dyce v Lady James Hay (1852)

Answer 2

New positive easement can thus be created as long as they are similiar in nature to or can be said to be a development of, others already establised by case law.

Question 3

Copeland v Greenhalf

Answer 3

Facts: the defendant had used a strip of land belonging to the claimant for 50 years, for the purpose of storing vehicles which were either repaired or awaiting repair.
Held: His claim to an easement over the land failed. His use of land was too extensive to constitute an easement as it had, in effect, deprived te landowner from using his own land entirely.
Principle: Any right the amounts o exclusive possessionn of the. Burdenned property cannot be an easement.

Question 4

Grisby v Melville [1972] 1 WLR 1355

Answer 4

Facts: The case concerned a claim to use a cellar room underneath the floor of an adjoining property. Access to te cellar was via some stairs, which led down from the benefiting owner’s house. The burdened land owner had no access to the space. Held there was no easement. The benefiting landowner’s use of land was such that it amountted to an exclusive right of user over the whole of the cellar.
Principle: Any rigt that amounts to exclude possession of the burdened property cannot be an easement

Question 5

London& Bleneim Estates Ltd v LAdbroke Retail Parks Ltd [1992] 1 WLR 1278

Answer 5

A rigt to park a car was held to constitute an easement, provided that the vehicles were not constantly in the same spaces and that they did not interfere with the burdened landowner’s reasonale use of land. If te right had extended to the right to par a car exclusively in the same place 24 hours a day, this would not have been an easement, because it wold ave had the effact of depriving the landowner from using their land altogether.

Question 6

Batchelor v Marlow (2003) 1WR 764

Answer 6

Facts: a claim to an easement of the right to park six cars on a plot of land between he hours of 9.30a.m and 6.00pm, Monday to Friday, failed on the basis tat the claim was too instrutive on the burdened landowner.
Principle: Any right that deprives the owner of te burdened property of the reasonale use of their property cannot be an esaement.

Question 7

Dominant and servient tenement

Answer 7

Dominant teneent is the land with the benefits of thhe easement, and the burdened tenement is the land that is burdened by it. Thus with a right of way, the serient tenement would be the land with the path runnin across it and the dominant tenement would be the land with the right to use the path.

Question 8

Hill v Tupper (1863) 2 H&C 121

Answer 8

A company leased land, adjoining a canal o Hill, giving him the rigt ti use the canal for boat trips. A man who owned a pub nearbyhen decide to rent ot his own boats on the canal for fishing. He tried to sue on the bbasis tat the pub owner wwas interfereing with Hill’s property right. Held: Hill’s rightts in the land could not form an easement, because they did nothing more than confer a personal advantage on him and his business.
Principle: The rigt us accommodate the dominant tenement.

Question 9

Moody v steggles (1879) 122 ChD 261

Answer 9

Facts: A rigt to hang a sign on neughbouring land hat pointed a pub was held to be a valid easement.
Principle: The rigt must accommodate the dominant tenement.

Question 10

Bailey v Stephens (182) 12 CB (NS) 91

Answer 10

In order for the righ to accomodate the dominant tenenment, the benefited and burderned land mus also be sufficiently close geographically

Question 11

Pugh v Savage [1970] 2 QB 373

Answer 11

This doesnt mna the benefited an burdened land must e immediatellyy addjacent to one another.

Question 12

William Aldred’s Case (1610) 9 Co Rep 57b

Answer 12

Facts: An action was brought against a neighbor for building next to the C’s house. Whlist te C’s right to receive light to thhe property was recognised his rightt to a view was not.
Principle: A right to a view is too vague to constitute an easement.
Where a right is too vague in nature, it cannot constitute an easement.

Question 13

Browne v Flower [1911] 1 Ch 219

Answer 13

Facts: A landlord had erected an external staircase to a block of flats which passed in between the two bedroom windows of the claimant’s flat. The court was clear in stating that there could be no easement of privacy.
Principle: A rigt of privacy is too vague to constitute an easement.

Question 14

Regis Property Co Ltd v Redman [1956] 2 QB 612

Answer 14

Facs: a tenantt tried to claim the benefit of an easement against is landlord to supply hot waer to the tenant’s property.
Held: This could not be an easement because it would impose a financial burden on the landlord.
Principle: An easement must not involve a cost to the burdened property.
An easementt canno involve expediture by the burdened property.

Question 15

S.52 LPA 1925; s1(2) LPA 1925

Answer 15

A legal easement can be expreslyy created by deed for a term equivalen to a freehold, or for a specified term.

Question 16

Implied grant or reservation

Answer 16

Necessity
Common intention
Wheeldon v Burrows
S.62 LPA 1925

Question 17

MRA Engineering Ltd v Trimster Co Ltd [1987] 56 P&PC 1

Answer 17

Facts: The existence of an alternative access o the property in the form of a public footpath over neighbouring land wwas held sufficint to prevent a claim to an eeasement of necessity, even though the public footpat did not provide he claimans wiith any vehicuar access.
Principle: any suggestion of another means to the access the properrty will defeat the claim.

Question 18

Manjan v Dammeh [1990] 61 P&PC 194

Answer 18

Facts: Land objoning a river waas hed to e not landocked and thereforce in iellgitable for a claimin easementof necessity because the reiver was a public highway and although less conviniennt, was therefore a perfectly legitiate access to the property.
Ptinciole: any access however inconvinient will orevent an easement of necessity frombeing granted.

Question 19

Jones v Pritchard [1908] 1 Ch 630

Answer 19

Facts: Shaed chimneys to apair of semidetached houses were to e capable of use both by partied through easement of. Commonintention.
Principle: he court will imphyy an easement where this was te intention of the parties to grant or reserve an easement over the land when it was sold.

Question 20

Stafford v Lee

Answer 20

Facts: A developer obtained planning pemmission to buid houses on his land, claiming right over his neighbour’s drive for access to the road. Held he rigt of way as granted. The intention of the pparties when lland was sols was for residential purpose, and so it should be implied that they intended residents to have access to the road.
Principle: The court will imply an easeent where his waas the inntention of the parties to grant ot reserve an easement over the land when it was sold.

Question 21

Wong v Beaumont Property Trust Ltd [1965] 1 QB 173

Answer 21

Facts: A basement propery was left for use as a restaurant. The tenant covanted in the lease to eliminate cooking smells. In addition, public health regulations required him to install a ventilation system to the premises. The only way the tenant could do this was ventilation ducts attahed to the part of the building retaned by the landlord.
Helld: Common inttention requires that the property was let or sold for a particular purposethat would be impossible to carry out without the beneffit of he easemen in question.

Question 22

Wheeldon v Burrows

Answer 22

Has effet of turning a quai easement into an easement. A quasi easement is a use of land thaat would become an easementifit was in seperate ownership fro the benefited landowner
If the righ is contnuos and apparent
If te right is necessary and the reasonable enjoyment of the land sold
The right was in use both at the tme of sale and immediately prior to it

Question 23

Section 62 LPA 1925

Answer 23

When the land occupied by the tenant is subsequently sold to them, or on renewal of their lease.

Question 24

Wright v Macadam (1949) 2 KB 744

Answer 24

A landlor allowed his tenant to use a coal shed on the landord’s premises. The lease was renewed and nomention was made of the use of the ccoal shed, but the andlord latter tred to claim extra rent for thhe use of it. Held: under s.62 LPA the licence had become an easement of storage
Principle: S.62 upgrrades a licence to an easement wen the the occupied land is subsequently sold to the tenant ot their lease renewed.

Question 25

Three basic requirements for prescipive rights o be established

Answer 25

The easement must be over freehold land
There must have been at least 20 years uninterupted use
Th use claimed mustt be ‘as of right’

Question 26

Hollins v Verney (1884) 13 QBD 304

Answer 26

Facts: A purported right of way that was used only three timmes over a period of 35 years was not considered suffiiently uniterrupted to acquire formal rigts over the land.
Principle: Use of the burdened land must have een continuous and reglar

Question 27

Barney v Bp Truckstop Ltd [1995] CLY 1854

Answer 27

Facts: The D’s claim to an easement of drainage hrough prescription failed because the use of it, whlis it had not been hidden fom the landowner in a dishonest fashion, was nevertheless unknown to the landower and unsuspected by him.
Principle: The use of land must not have been hidden from the burdeed landoner.

Question 28

S Dalton v Angus & Co [1881-1885] All ER Rep 1

Answer 28

Facts: An easement of support for a building neighbouring the C’s propery was granted because te building ad been supported by te neighbouring property without objection of the neighboring landowner permitted and thereforce, the use could not be as of right
Principle: If the use is with the burdened landowner’s permission, it cannot be use as of right.

Question 29

Comon law prescription

Answer 29

If it has been enjoyed sice ‘time immemorial’ it is presumed thta and easement has been granted

Question 30

Lost modern grant

Answer 30

The C can prove either there has been continuous use of the claimed easement for any single period od 20 years or more duting the lifetime of the easement, there will bw a judicial presumtion tat at nw stage an easement was validly granted by deed but that the docuentation and hence he proof of the modern grant, has since been lost

Question 31

An easement will be presumed if 20 years continuous user ca be established

Answer 31

1. the user of righ
   the owner of the. 2.Burderned land is 18 and over and sui iuris
2. There has been no interruption for a year or more

Question 32

An easement will be presumed if 40 years continuous user can be estalished and

Answer 32

1. The user is as of right
2. The burdened land is not held by a tenant for life or tenant for a term
3. There has been no interuption for a year or more

Question 33

Easement of light

Answer 33

S3 of Prescription A 1832 thereis no 40-year period applicable to the acquisition of rights of light. Only a 20-year period of continous user need be proved. Once 20 years continous can be shown the only way it can be defeated by evidence of express written consent to the right.

Question 34

S.3 LRA 2002

Answer 34

The person buying te land knew about the easement
The easement would have been obvious from a reasonably careful inspection
The easenebt had been used in the last year before the land was sold.

Question 35

Equittablle easements created after 1 January 1926

Answer 35

Are registerable as Class Diii Land Charge at he Central and Charges Register. If registed in this wa, they will bind any buyer of the burdened land. If they are not egistered in this way, they will be void aginst a urchaser for money or moneyOs worth of a legal estate in th land (but no against someone receiving the legal esate as a gift)

Question 36

Extinguishment of easements

Answer 36

By agreement

Unity of seisin if the land is either ccupied or owned by the same person, the easement will cease to exist

Question 37

Abandonment

Answer 37

This must comprise a deliberate abandonment of the easement and not simple non-user of the right. Once an easement has been declared abandoned by the courts, it is deemed to be permanently existinguished.

Question 38

Swan v Sinclai [1924 ]1 Ch 254

Answer 38

Facts: A right of way that had not een used for over 50 years, and tat had been blocked by fences and ueven ground, was held to have been abandoned..
Principle: Once an easement has been seclared abandoned by the courts, it is deemed to be permanently extinguished.

Question 39

Benn v Hardinge (1992) 66 P&CR 246

Answer 39

Facts: a rigt of way that had not been useed for 175 years was not held to have been abandoned just because there were alternative access routes to the property which the landowners had favoured until a flood made use of the unused access way necessary once more, that did noy mean that the aternative access had been abandoned not that it could not be resurrected.
Principle: Lack of use will not necassarily equate to abandonment.