Easements 1 (Ellenborough and Grant of E)

Question 1

What is an easement?

Answer 1

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

Question 2

What is a profit a prendre?

Answer 2

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

Question 3

Tqo questions to consider when deciding whether or not an easement exists is…

Answer 3

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

Question 4

TESTS FOR CAPABILITY - Ellenborough Park Test (4 characterisitics)

Answer 4

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

Question 5

3 - The right must accomodate the dominant tenement

Answer 5

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

Question 6

CAPABLITY - Is the right acceptable as an easement? - 1

Answer 6

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

Question 7

CAPABLITY - Is the right acceptable as an easement? - 2: OUSTER PRINCIPLE (FOR)

Answer 7

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

Question 8

CAPABLITY - Is the right acceptable as an easement? - 2: OUSTER PRINCIPLE (AGAINST)

Answer 8

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

Question 9

Has the right been validly acquired as an easement? - METHODS OF ACQUISTION

Answer 9

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

Question 10

Grant of an easment - Express

Answer 10

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

Question 11

Grant of an easement - Implied (4 methods)

Answer 11

CREATED ONLY ON SALE OF PART

The 4 methods include:
> Necessity
> Common Intention
> Rule in Wheeldon v Burrows
> S.62 LPA 1925

Question 12

Grant of an easement - Implied: NECESSITY

Answer 12

Land cannot be used at all without a grant - Nickerson v Barraclough

LANDLOCKED ->

Question 13

Grant of an easement - Implied: COMMON INTENTION

Answer 13

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)

Question 14

Grant of an easement - Implied: COMMON INTENTION (Wong v Beaumont)

Answer 14

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

Question 15

Grant of an easement - Implied: COMMON INTENTION (Stafford v Lee)

Answer 15

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

Question 16

Grant of an easement - Implied: WHEELDON V BURROWS

Answer 16

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

Question 17

Wheeldon v Burrows Requirements

Answer 17

1. IN USE BY THE OWNER AT TIME OF SALE
2. CONTINUOUS & APPARENT
3. 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

Question 18

Wheeldon v Burrows - Wheeler v Saunders

Answer 18

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

Question 19

Wheeldon v Burrows - Millman v Ellis

Answer 19

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

Question 20

Grant of an easement - Implied: S.62

Answer 20

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

Question 21

Effect of s.62 - Existing easements

Answer 21

S.62 transfers the benefit of an EXISTING easement to the new owner of the dominant tenement

Question 22

Effect of s.62 - New Easements

Answer 22

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)

Question 23

What is actually required for s.62 to magically create a new easement?

Answer 23

1. A CONVEYANCE of land (= doc which creates or transfers a legal estate)
2. It being evident before the conveyance that the land being sold had enjoyed an ADVANTAGE over the remaining land of the seller.

Question 24

The situation in which s.62 LPA 1925 frequently operates in diversity of occupation cases

Answer 24

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.

Question 25

What is required for s.62 to have effect?

Answer 25

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