Easements 1 (Ellenborough and Grant of E) Flashcards
What is an easement?
A right to make a limited use of another person’s land for the benefit of land
E.G. Philip walking across Jane’s land or shared driveways
Easement is a proprietary right and therefore enforceable against a 3rd party
Tenement = land
What is a profit a prendre?
A right to TAKE the soil, minerals, or natural produce of another person’s land
This is a right to take someones’s land not a right of use unlike easements
Tqo questions to consider when deciding whether or not an easement exists is…
Is the right capable of being an easement?
AND IF YES
Has the right been validly acquired as an easement?
Also discuss enforceability if there is a successor once an easement exists
TESTS FOR CAPABILITY - Ellenborough Park Test (4 characterisitics)
1 - There must be a dominant tenement (benefitted land) & a servient tenement (land which is being used)
2 - The dominant & servient tenements must not be owned and occupied by the same person
3 - The right must accommodate (benefit) the dominant tenement (so the dominant LAND not necessarily owner must benefit)
4 - The right must be capable of being granted by deed e.g. must be capable of grantor and grantee & must be sufficiently definite
3 - The right must accomodate the dominant tenement
It must be the land which benefits, not just the individual person
= The right must serve the normal use and enjoyment of the dominant tenement (Regency Villas Title Ltd v Diamond Resorts [2018]
Proximity between DT and ST must be reasonable so that the DT actually benefits
What if it is a business on the land which benefits?
> Hill v Tupper –> pleasure boat company on a canal and when a rival boat company opened up, the pleasure boat company owner tried to argue that they had an easement and that this was interfering with that right of use –> Court said it did not because this was purely a business benefit i.e. it wasn’t actually useful to humans –> therefore wasn’t recognised as an easement
Moody v Steggles –> the normal use of the land can be a business use so the
right can serve that use (because the pub had been therefore AGES so it was benefitting the pub but more the land because the pub had been there for so long that it was seen as being part of the land
CAPABLITY - Is the right acceptable as an easement? - 1
A right requiring the servient owner to take positive action is NOT acceptable e.g financial expenditure —Regis Property Co Ltd v Redman [1956] 2 QB 612
Exception (fencing) — Crow v Wood [1971] 1 QB 77 - maintenance of a fence –> can’t be viewed an easement
Generally the person that benefits from a right is the one who maintains it
CAPABLITY - Is the right acceptable as an easement? - 2: OUSTER PRINCIPLE (FOR)
The right must not deprive the owner of the servient tenement of the benefits of ownership (= the ouster principle)
Storage and car-parking cases:
> Wright v Macadam (1949) - a right occupied to use the shed as a coal shed. When the lease renewed the use of the shed for a storage of coal became an easement
HOWEVER, Grigsby v Melville (1974) - storage in a cellar but the DT use of the cellar exlcuded the ST from using it so it wasn’t an easement
> London and Blenheim Estates v Ladbroke Retail Parks Ltd (1994) - servient owner must retain reasonable use of ST BUT if it deprives the S owner from use then it ousts them so it wont be an easement
CAPABLITY - Is the right acceptable as an easement? - 2: OUSTER PRINCIPLE (AGAINST)
There have been two tests for Ouster put forward:
1 - The E must leave the servient owner with reasonable use of their land (London & Blenheim Estates v Ladbroke Retail Parks)
2 - The E must leave the servient with possession & control of their land
> Virdi v Chana 2008- Chana was parking over some of Virdi’s land but Virdi’s land was now to small to park HOWEVER V can still use the land for other things = reasonable use
> Kettel v Bloomfold 2012 - designated parking spot - capable of an E because the S owner could change the flooring or build in the air space above = reasonable use
Has the right been validly acquired as an easement? - METHODS OF ACQUISTION
THE GRANT OF AN EASEMENT –> the land that is sold has the benefit of the easement
THE RESERVATION OF AN EASEMENT –> the land that is retained has the benefit of the easement e.g. may have right of way over sold land
Grant of an easment - Express
Created either:
when 2 plots of land are already in separate ownership and the owner of one plot grants an E to the other owner of the other plot
OR
on sale of part i.e. when one person owns a piece of land & grants an E when he sells part of it
Grant of an easement - Implied (4 methods)
CREATED ONLY ON SALE OF PART
The 4 methods include:
> Necessity
> Common Intention
> Rule in Wheeldon v Burrows
> S.62 LPA 1925
Grant of an easement - Implied: NECESSITY
Land cannot be used at all without a grant - Nickerson v Barraclough
LANDLOCKED ->
Grant of an easement - Implied: COMMON INTENTION
Intended use fot the acquired land AND all parties must know about that intended use (everyone should be aware)
The easement should also be intrinsic / essential to that use i.e. without the grant of that easement, the use wouldn’t be possible (Wong v Beaumont)
Grant of an easement - Implied: COMMON INTENTION (Wong v Beaumont)
two plots of land and the E was to be able to run this ventilation shaft over the retained land
Cellar space (sold land) was to be used as a restaurant and they promised in the covenant they would remove any smells that came from said restaurant –> thus the ventilation shaft
Court said everyone was aware of the intended use for the cellar to be a restaurant and if they were not permitted to run that ventilation shaft then they wouldn’t be able to use it as a restaurant
the E (shaft) was intrinsic to use of this restaurant –> SO there had to be an implied grant of this commonly intended easement
Grant of an easement - Implied: COMMON INTENTION (Stafford v Lee)
Land was bought to be used for development of residential properties
Houses would be built on the sold land and on the retained land there was a driveway to allow access by vehicles
Commony intended purpose to be used for development of residential properties & everyone was aware
And the driveway for ppl to bring their cars to the houses was intrinsic for that use
Grant of an easement - Implied: WHEELDON V BURROWS
An owner exercises a right over one part of his land for the benefit of another part of his land = a quasi-easement
Landowner sells benefited part
Landowner retains burdened part
The Buyer may acquire an implied easement over the Owner’s retained land
Wheeldon v Burrows Requirements
- IN USE BY THE OWNER AT TIME OF SALE
- CONTINUOUS & APPARENT
- NECESSARY TO THE REASONABLE ENJOYMENT OF THE LAND SOLD
> Wheeler v JJ Saunders Ltd 1996 Ch 19
> Millman v Ellis 1996 71 P & CR 158
Wheeldon v Burrows - Wheeler v Saunders
Saunders owned all the land (retained land) and Wheeler bought half of the land with the farmhouse (sold land)
Wheeler claimed he acquired a right of way across saunders retained land when he purchased
There were two entrances onto the DT and one of the entrances crosses the ST while the other does not
Wheeler said that the entrance which crossed the ST was better for him and that it increased accessibility for his land to have better access
Court did not share that view and said where there are two points of access –> it is mere convenience and necessary to reasonable enjoyment of the land sold
Wheeldon v Burrows - Millman v Ellis
Ellis owned all the land (retained land now) and sold some of the land to Millman (sold land)
Millman had an express grant of way over the layby area which was on Ellis’ retained land
Millman argued he should have a right of way over the narrow and winding road because he said it was a safer means of entry and exit compared to the layby which was more dangerous to enter and exit from
Millman was successful as courts said it was more than mere convenience here because it was a matter of health and safety = necessary for reasonable use
Grant of an easement - Implied: S.62
An easement under s.62 is sometimes referred to as an express easement instead of an implied one
‘A conveyance of land shall be deemed to include and shall…operate to convey with the land, all liberties, privileges, easements, rights and advantages whatsoever, appertaining…to the land, or, at the time of conveyance…enjoyed with…the land.’
——-> provided that it is an advantage that is enjoyed with the land at the time of the conveyance –> then we can create a new easement out of it
Effect of s.62 LPA:
> EXISTING easements are transferred (this is nothing to do with the grant/creation of an easement)
> NEW easements can be granted/created
Effect of s.62 - Existing easements
S.62 transfers the benefit of an EXISTING easement to the new owner of the dominant tenement
Effect of s.62 - New Easements
S.62 creates NEW easements:
> from a permission where there is diversity of occupation (when 1 person may own both plots of land but there is separate occupation) (Goldberg v Edwards)
OR
> where a right is continuous and apparent (Wood v Waddington) –> this exists where there is unity of occupation (1 owner occupier)
What is actually required for s.62 to magically create a new easement?
- A CONVEYANCE of land (= doc which creates or transfers a legal estate)
- It being evident before the conveyance that the land being sold had enjoyed an ADVANTAGE over the remaining land of the seller.
The situation in which s.62 LPA 1925 frequently operates in diversity of occupation cases
Part of an owner’s land is occupied by someone else (the occupied plot)
The occupier is given a licence to make some use of the owner’s retained land.
The owner then conveys by deed the legal estate in the occupied plot.
What is required for s.62 to have effect?
A conveyance
> transfer by deef of legal /freehold estate
> grant of a new legal lease
Advantage have being enjoyed with the land being sold which is shown by:
> diversity of occupation before sale
> advantage being continuous & apparent
