Easements

Question 1

Easements

What is an easement?

Answer 1

Easements: Proprietary rights to do something over the land of the other for the benefit of one’s own land.
 As they’re proprietary rights, v different from licences (mere permissions to use another’s land)
 No ownership: holder owns a right to do the prescribed action over the land for benefit of his land.
 It is a proprietary right over one piece of land (servient tenement) for the benefit of another piece of land (dominant tenement) by which the dominant owner acquires the right to use the land of the
servient owner either by using the land himself (positive) or requiring servient not to use it (negative).

Question 2

Easements - Post LCLR 2009

What should be borne in mind re the changes brought by LCLR 2009?

Answer 2

Easements were modernised by LCLRA 2009. However, the sections are not
retrospective and thus the old law is still applicable in many ways.

Question 3

Easements - Characteristics

Re Ellenborough Park [1956]

Answer 3

sets out the classical definition of an easement:

(a) There must be a dominant and servient tenement
(b) The easement must accommodate the dominant tenement
(c) The ownership and/or possession of both tenements must be in different people
(d) The right must be capable of lying in grant

Question 4

Easements - Characteristics - There Must be a Dominant and Servient Tenement

Explain this feature of easements?

Answer 4

Easements are appurtenant rights meaning they exist between 2 pieces of land to which they’re appurtenant
(attached to): can’t exist in gross. As appurt rights, they stay attached to the lands + transferred with them
No requirement that the dominant and servient tenements be attached to each other: they simply need to be sufficiently proximate to enable the accommodation of the dominant land by the servient land, see Latimer v Official Co-Op Society [1885]

Question 5

Easements - Characteristics - There Must be a Dominant and Servient Tenement

Latimer v Official Co-Op Society [1885]

Answer 5

• Terrace of 3 houses. House on end demolishing, caused middle house to detach from 3rd house in terrace.
• Though they weren’t attached, held 1st house (demolished) owed duty to support 3rd house in the terrace.

Question 6

Easements - Characteristics - The Easement Must Accommodate the Dominant Tenement

What does this mean?

Answer 6

For something to be defined as an easement, it must accommodate the dominant tenement i.e. increase its amenity, utility or convenience. Must make the use of the land more convenient in a relatively substantial way

Question 7

Easements - Characteristics - The Easement Must Accommodate the Dominant Tenement

Re Ellenborough Park [1956]

Answer 7

• Whether it accommodates or not depends on the nature of the easement + dominant tenement: here held a right to use a ‘pleasure garden’ accommodated residential houses in same way as a garden usage would.
• Controversial: was it necessary to the enjoyment of the houses? And would they have found this if the alleged dominant tenements were warehouses or factories

Question 8

Easements - Characteristics - The Ownership and/or Possession of Both Tenements Must be Held by Different People

Explain this?

Answer 8

As a matter of logic, the dominant + servient must be different people as one does not an easement over one’s own land. Only quasi exception is where someone rented some land out: then the tenant has leasehold
ownership + exclusive possession and thus the landowner (landlord) has an easement over the leasehold land.

Question 9

Easements - Characteristics - The Right Must be Capable of Lying in Grant

What does this mean?

Answer 9

Ease must be capable of being expressly granted in writing. Cannot be so vague not to be in writing.

Question 10

Easements - Characteristics - Beyond Ellenborough

What characteristic is beyond Ellenborough?

Answer 10

An easement can’t go so far to basically make the servient owner’s rights illusory: can’t over infringe on the proprietary rights of the servient owner. This principle was set out in: Copeland v Greenhalf [1952]

Question 11

Easements - Characteristics - Beyond Ellenborough

Copeland v Greenhalf [1952]

Answer 11

• Adjoining properties where the dominant tenement had a right of way over the servient. The property was being utilised by a mechanic. Initially used right of way to park cars, but then started working on them
• C said this was beyond a right of way. Held the mechanic was not claiming a right of way but ownership due to the nature of the use of the easement, thus they struck down the easement.

Question 12

Easements - Characteristics - Beyond Ellenborough

Regency Villas Title v Diamond Resorts [2017]

Answer 12

• English CA reiterated some principles, including: (1) in modern world, an easement could involve recreation or amusement incl. physical exercise (2) it must improve the generl utility of the dom tenement
• Held various rights to use outdoor facilities were easements such as tennis court, pool, gardens, golf course, etc. on adjoining land. But disagreed w the right to use facilities in a mansion house on the adjoining land such as a billiard room, a tv room, bar, sauna were easements: personal right to use chattels

Question 13

Easements - Acquisition - Express Grants

How does an express grant function?

Answer 13

An easement can be granted through a standard conveyance and can be done at the time as the land is granted or at a later point. Pre-2009, words of limitation needed for an inter vivos conveyance of an easement but now:
S.67(1) LCLRA: Words of limitation are not needed.

Question 14

Easements - Acquisition - Easement by Reservation

How do these work?

Answer 14

A vendor may reserve an easement to himself when selling land and retaining an adjacent tract. Can be express or implied. Pre-2009, done by means of a grant and re-grant or by executed use. Cumbersome. Now:
S.69(1) LCLRA: Reservation can simply be made either to the grantor of land or 3rd party in a document.

Question 15

Easements - Acquisition - Easement by Implication

What five ways can these arise?

Answer 15

(i) Easements of Common Intention
(ii) Easement by Application of the Principle that One Cannot Derogate from a Grant
(iii) Easement by Application of the Rule in Wheeldon v Burrows: Abolished by S.40 LCLRA 2009
(iv) Easement S.6 Conveyancing Act 1881 – Replaced by S.71 LCLRA 2009
(v) Easement by Necessity

Question 16

Easements - Acquisition - Easement by Implication - Common Intention

What are these?

Answer 16

These are easements recognised by the law to give effect to what the court establishes was the common intention of the parties. Different from easement by implied contractual term (as above).

Question 17

Easements - Acquisition - Easement by Implication - Easement by Application of the Principle that One Cannot Derogate from a Grant

How does this work?

Answer 17

If a grant of land is made for a particular purpose, then the grantee that retained some neighbouring land can’t use their land in such a way that’d (a) undermine the intended use of the land or (b) render the land unfit or less fit for the particular purpose for which the grant was made.

Question 18

Easements - Acquisition - Easement by Implication - Easement by Application of the Principle that One Cannot Derogate from a Grant

Connell v O’Malley [1983]

Answer 18

• O had site for sale w outline planning permission for 5 houses thus considered development land
• The site, forming part of O’s farm, was accessed by a laneway through the farm.
• Initially, parties entered a preliminary contract but O changed his mind + tried to avoid the sale
• C sued and got a court order enforcing the contract. O then put gates across the laneway + refused to let P bring a water-main to his the site via his property. After more litigation, built a concrete wall across lane
• C applied for an injunction to require O remove the concrete wall on basis he was entitled to a right of way
• Held O couldn’t derogate from his grant: O’s actions made the site materially less fit for the purpose it was
  acquired (development of 5 houses) + O ought to have anticipated this. Held a right of way was created.

Question 19

Easements - Acquisition - Easement by Implication - Easement by Application of the Rule in Wheeldon v Burrows: Abolished by s.40 LCLRA 2009

Wheeldon v Burrows [1879] OLD RULE

Answer 19

• Rule provided that where a landowner disposed of part of his land but kept the remainder, then any quasi-easements (rights that were exercised by the grantor in respect of the land) that existed over the land transferred will be elevated to an easement + attach between the two tracts of land. If 3 criteria met:
• Conditions arise when at the time the land is sold to another person the easement is:
  (1) Continuous and apparent
  (2) Reasonably necessary to the use of the land being sold (discoverable on inspection) and
  (3) Had been, and were at the time of the grant, used by the grantor for the benefit of the land granted

Question 20

Easements - Acquisition - Easement by Implication - Easement by Application of the Rule in Wheeldon v Burrows: Abolished by s.40 LCLRA 2009

How does s.40 operate

Answer 20

S.40 LCLRA abolished Wheeldon but only applies to conveyances made since 1st Dec 2009 (NB Exam Q)
S.40(2): Where the owner of land disposes of part of it or all of it in parts, the disposition creates by way of implication for the benefit of such part any easement over the part retained that:
(a) Is necessary to the reasonably enjoyment of the part disposed of and
(b) Was reasonable for the parties or would have been if they had averted to the matter, to assumed at the date of the disposition took effect as being included in it.
S.40(3): This doesn’t affect (a) easements arising by implication as easements of necessity or to give effect to
the common intention of parties to the disposition and (b) the operation of the doctrine of non-derogation

Question 21

Easements - Acquisition - Easement by Implication - Easement S.6 Conveyancing Act 1881 – Replaced by S.71 LCLRA 2009

How did s.6 operate? How was it different from Wheeldon?

Answer 21

S.6(1) Conveyancing Act 1881: Where an easement already exists over land that easement would be passed automatically with the land. A conveyance is an assignation, apptmt, lease, settlement, etc. + covenant to surrender, made by deed on a sale, mortgage, demise or settlement of any property. Can be excl by contrary int
S.6(2): Where there’s diversity of ownership + an easement-type right was permissively enjoyed, this right may be elevated to the status of an easement on subsequent conveyance (unless contrary intention in grant).
Different to Wheeldon: (1) Need diversity of ownership (2) Conveys pre-existing easements not quasi-ones and (3) there’s 2 tracts of land here not 1 as in Wheeldon

Question 22

Easements - Acquisition - Easement by Implication - Easement S.6 Conveyancing Act 1881 – Replaced by S.71 LCLRA 2009

How does s.71 operate?

Answer 22

S.71 LCLRA 2009 replaces s.6 but only applies to conveyances executed after 1st Dec 2009: provides for the automatic conveyance of easements but excludes the possibility of elevating any licence or privilege to the status of easement. Essentially abolishes s.6(2).

Question 23

Easements - Acquisition - Easement by Implication - Easement by Necessity

When does this arise? What case speaks to a general rule for them?

Answer 23

Where property is transferred that’d be incapable of use e.g. become landlocked without an easement, the court will find an easement is created in favour of the grantee as an easement of necessity. Although the principle generally concerns rights of way, it isn’t limited to such rights.
Donnelly v Adams [1905]: The grantee must choose a convenient route and must not thereafter vary it.

Question 24

Easements - Acquisition - Easement by Implication - Easement by Necessity

Maguire v Browne [1921]

Answer 24

• A right of way of necessity rests on the intention of the parties: the law presumes a man who owns a part of land and grants away all the land surrounding it wouldn’t intend to leave himself landlocked.

Question 25

Easements - Acquisition - Easement by Implication - Easement by Necessity

Wong v Beaumount Property Trust [1965] UK - NB Exam

Answer 25

• 3 cellars in a house let by the D’s predecessors in title to P’s predecessors in title as a Chinese restaurant
• Statutory regulations provide no premises could be used as a restaurant unless it had a ventilation system
• This could only be installed by fixing a duct to the outside wall of D’s retained upper floors of the building
• Held P was entitled to an easement to affix and maintain a duct on the will.
• Court classified this as an easement of necessity, although it was not a physical, but a legal necessity.

Question 26

Easements - Acquisition - Easement by Implication - Easement by Necessity

Palaceanne Management v AIB [2017]

Answer 26

• CA held the bank, as mortgagee of two unsold apartments in a new development, had rights of access over the common areas as an easement of necessity. Otherwise, its units would be landlocked or ‘quarantined’
• Apart from that it’d be entitled by implication under the rule in Wheeldon.

Question 27

Easements - Acquisition - Easement by Implication - Easement by Necessity

Hennessy v An Bord Pleanala [2018]

Answer 27

• HC said an argument could’ve been made that an express right to connect up to + use an effluent treatment incl., by way of implication, a right to the plant itself (for purposes of inspection, repair, maintenance)
• Murphy J noted such an implied right might’ve been invoked on 4 possible grounds: (1) necessity (2) common intention of the parties (3) non-derogation from grant (4) Wheeldon or s.40 LCLRA 2009

Question 28

Easements - Acquisition - Easement by Implication - Easement by Necessity

Dwyer Nolan Developments v Kingscroft Developments [1999]

Answer 28

• P owned land in Wicklow. Sold part to D in 95. No roads on land at time contract entered into but PP app submitted by D showed there were plans to construct roads that could result in access to the prop by P.
• After PP granted, P built 164 houses on this supposed access road leaving Ps property landlocked
• Held P entitled to right of way to access the property despite the fact it hadn’t been reserved in conveyance
  on basis there was a common intention, based on circs, that the prop would be developed – need access.

Question 29

Easements - Acquisition - Easement by Estoppel

How do these arise?

Answer 29

Where a landowners has led another to believe that they’d receive an easement over their land and the other has acted to their detriment on the basis of that representation and the requirements of Ellenborough are met, an easement might be recognised under the principle of estoppel.

Question 30

Easements - Acquisition - Easement by Estoppel

Crabb v Arun District Council [1976]

Answer 30

• P agreed to sell land to D but required access through the land to some property he was retaining. He sought a right of way from D before the sale + at meeting D agreed, but no formal access in conveyance
• D then blocked off access. P sought injunction to prevent this claiming D estopped from doing this.
• Found in P’s favour: D led him to believe he’d have a right of way + acted to detriment (conveyed land)

Question 31

Easements - Acquisition - Easement by Estoppel

Annally Hotel v Bergin [1970]

Answer 31

• An agreement, however informal, that land could enjoy light and that resulted in an action by the landowner to his detriment could result in an easement of light. Here, P erected + modified a building on the strength of this representation and thus was recognised as having acquired a right to light by estoppel.

Question 32

Easements - Acquisition - Easement by Estoppel

Walsh v Walsh [2018]

Answer 32

• HC held that equitable easements for a right of way and right of conduit (to run service pipes under a lane leading to a housing development) had arisen as the servient owner was estopped by representations they made to the owners of the development site who then acted to their detriment on this.

Question 33

Easements - Acquisition - Easement by Presumed Grant/Prescription

How did these arise prior to LCLRA 2009?

Answer 33

If a right that appears to be an easement has been exercised for a long time, a court may presume an easement was granted by deed at some time in the past. Before LCLRA 2009, three methods: (i) at common law, (ii) lost
modern grant, (iii) Statutory prescription. Abolished by LCRA + new system

Question 34

Easements - Acquisition - Easement by Presumed Grant/Prescription

What were the four requirements in every case?

Answer 34

(1) The user is capable of existing as an easement
(2) There’s been open + continuous user as of right (without force, w/o secrecy + w/o permission of owner)
(3) The right must be capable of existing as an easement under Ellenborough
(4) The user must be continuous and not intermittent (but meaning of continuous depends on type of easement claimed e.g. right of way is from time to time)

Question 35

Easements - Acquisition - Easement by Presumed Grant/Prescription

Zopitar Ltd v Jacob [2017] IE

Answer 35

• Held acquiescence by the servient owner rules out user involving ‘tolerated’ use or use by tacit permission
• Here user stemmed from P’s long-standing family connection w the servient factor and amounted to at most a personal privilege enjoyed by the family.

Question 36

Easements - Acquisition - Easement by Presumed Grant/Prescription

How did Common Law Prescription work?

Answer 36

If you could show user in compliance with above 4 from time immemorial (1189), an easement could by recognised by prescription. Difficulties proving user for such long time so reduced it to 20-years user

Question 37

Easements - Acquisition - Easement by Presumed Grant/Prescription

How did Lost Modern Grant Prescription work?

Answer 37

Prescription at CL defeated easily, so courts created another fiction: if user could be shown for considerable period then they presume a grant of easement was made in modern times but subs lost. 20 yrs user sufficient.

Question 38

Easements - Acquisition - Easement by Presumed Grant/Prescription

Orwell Park Management Ltd v Henihan [2004]

Answer 38

• Concerned alleged right of way for vehicles along laneway over D’s property.
• D accepted there was a pedestrian right of way but denied it was vehicular. P then adduced evidence of deliveries by horse and cart and later lorries between 1937 and 1972. D blocked it off w shrubs/plants
• Held as it’d been used in past for 20 years (1937-72), resulted in lost modern grant: held right of way

Question 39

Easements - Acquisition - Easement by Presumed Grant/Prescription

How did statutory prescription work prior to LCLRA 2009?

Answer 39

Prescription (Ireland) Act 1858: It did not abolish common law or modern grant prescription. It allows for acquisition of easements by prescription under either shorter or longer period prescription:
 Shorter Period: An easement can be acquired by prescription under shorter period if there’s (a) continuous and uninterrupted user w/o force, secrecy and oral/written consent of owner of (b) capable of being described as easement for (c) 20 years (d) w/o consent of servient owner (e) next before a suit or action.
 Longer Period: An easement can be acquired by prescription under longer period if there’s (a) continuous + uninterrupted user w/o force, secrecy + oral/written consent of owner of (b) capable of being described as easement for (c) 40 years (d) w/o consent of servient owner (e) next before a suit or action.
 If fulfil these, title to an easement is absolute except by evidence of written consent.
 Prescription must’ve continued right up to the point of the claim for both +interruptions can defeat a claim

Question 40

Easements - Acquisition - Easement by Presumed Grant/Prescription

How does prescription work under LCLRA 2009?

Answer 40

LCLRA 2009 abolishes acquisition by prescription at CL + under lost modern grant + repeals Prescription Act
S.35(1): An easement shall be acquired at law by prescription only on registration of a court order.
S.33: The relevant user period is 12 years, or 30 years for State authority or 60 yrs if servient land is foreshore
S.38: It provides a transitional period of 3 yrs now extended to 12 yrs in Civil Law Mics Provisions Act 2011
 Can use the old prescription laws until 1st Dec 2021: after that, all claims must then be made under the
statutory method of acquisition in s.35. For state property + foreshore, extended to 2039 and 2069.

Question 41

Easements - Acquisition - Common Easements - Right of Way

Gaw v CIE [1953]

Answer 41

• P owned house w land stretching down to seashore. Railway co bought portion of land bw house + sea to build railway line. They executed a deed granting a right of way across the land to the sea over a path
• The railway co covenanted themselves to keep, repair and maintain the path. Path fell into disrepair
• Held P entitled to the right of way and to benefit the covenant. Mandatory injunction granted.

Question 42

Easements - Acquisition - Common Easements - Right of Way

Flynn v Harte [1913]:

Answer 42

Erecting a gate on a property isn’t an illegitimate limitation on the easement provided the holder of the right is given the means to pass through on condition he closes gate/reconstructs obstruction.

Question 43

Easements - Acquisition - Common Easements - Right to Support

Latimer v Official Co-Op Society [1885]

Answer 43

• Terrace of 3 houses. House on end demolishing, caused middle house to detach from 3rd house in terrace.
• Though they weren’t attached, held 1st house (demolished) owed duty to support 3rd house in the terrace.

Question 44

Easements - Acquisition - Common Easements - Right to Support

Todd v Cinelli [1999]

Answer 44

• 2 houses in Howth. Properties semi-detached. D knocked down his property w/o planning permission
• This left P’s house w exposed wall, damage + exposed to the wind + weather and reduced in value.
• Held P had a right to support from the other property and case proceeded as assessment of damages only
• Court took into acc the changed appearance of the P’s property: ‘it looked particular odd without its twin’
• Held can’t be prevented from developing own property, but this was not an authorised development.

Question 45

Easements - Acquisition - Common Easements - Right to Protection from Wind and Weather

Phipps v Pear [1965] UK

Answer 45

• Held the right to have a wall of a house protected against weather by owner of adjoining property couldn’t exist as an easement as too vague. But weather proofing adj buildings could be a condition of planning per

Question 46

Easements - Acquisition - Common Easements - Right to Protection from Wind and Weather

Treacy v Dublin Corporation [1993]

Answer 46

• Council issued statutory notice to demolish a dangerous building to the first floor level. Owner of adjoining land sought injunction to restrain on grounds that an easement of support existed.
• SC reversed: Held no right to protection from wind and weather, but if a protection from wind + weather happens to be provided in course of providing support, then the easement of support may require the continued protection of the neighbouring property from wind and weather.

Question 47

Easements - Acquisition - Common Easements - Right to Light

How do easements normally function as regards light?

Answer 47

Ownership of land gives rise to an automatic entitlement to light that descends vertically.
 An easement is required in order to gain a right to light horizontally over property.
 If a right to light has been granted or arises by prescription, then this easement requires the servient tenement not to obstruct light passing horizontally over a dominant tenement.

Question 48

Easements - Acquisition - Common Easements - Right to Light

Where is the common law approach described, what does it entail?

Answer 48

Usually acquired by prescription. Comm law approach reflected in S.3 Prescription (Ireland) Act 1858:
 The dominant tenement must be a building and the right to light must be accessed through aperture in building (window or windows) not doors with apertures in them.
 If use of light in a dwelling house, workshop or greenhouse or other building has been ‘actually enjoyed’ for 20 yrs w/o interruption the right is deemed “absolute + indefeasible” unless enjoyed by consent / agreement expressly made in writing so oral consent won’t defeat a claim
 Hanna v Pollock [1900]: Irish courts state a claim can also be made on basis of the lost modern grant.

Question 49

Easements - Acquisition - Common Easements - Right to Light

Scott v Goulding Properties [1972]

Answer 49

• P bought a mews in Dublin 1959, converted it for residential use + installed windows on ground floor.
• The existing windows on the upper floor were ancient lights. Later, D built a building 124ft high close to the P’s property that obstructed P’s windows.
• SC held P was entitled to compensation for the obstruction of her ancient lights only.

Question 50

Easements - Acquisition - Common Easements - Right to Light

Allen v Greenwood [1920]

Answer 50

• Ps greenhouse in same position for 20+ yrs. Said work on Ds land interfered w right of light they acquired
• P could no longer grown plants. Held measure of light required for beneficial use of a building for any purpose it was acquired was light req for the beneficial use of the building for any purpose it was adapted
• Thus P acquired the prescriptive right to light not restricted to light for illumination (incl plants).

Question 51

Easements - Acquisition - Common Easements - Right to Light

Tisdall v McArthur [1951

Answer 51

Light refracted though glass is still light: not an ‘interruption’ under the Act

Question 52

Easements - Acquisition - Common Easements - Right to Light

Phipps v Pear [1965]:

Answer 52

The right to a view has not been held an easement on the ground it’s too vague.

Question 53

Easements - Discharge of Easements

How can an easement be discharged?

Answer 53

Easements can be discharged by statute, operation of law or release by dominant owner. A release can be express / implied. Implied = ‘abandonment’. Need (i) long time of non-user + (ii) intention to release easement

Question 54

Easements - Discharge of Easements

Orwell Park Management Ltd v Henihan [2004]

Answer 54

Implied release is infrequently recognised as easements are

valuable property rights that the courts are anxious to protect.

Question 55

Easements - Profit a Prendre

What is a profit a prendre and what is its nature?

Answer 55

Easements + a profits-å-prendre both incorporeal hereditaments + can be held in freehold or leasehold interests
 While general rights have been recognised (e.g. right of way), new rights can be created. 4 main incorp hereditaments: (1) profits a prendre (2) easements (3) Periodic rents + annuities (4) Rent charges.
 A profit a prendre is a right to take something from another’s land. It must be a part of the land itself e.g.
minerals or creatures living natural on the land that when taken are capable of being owned e.g. fish

Question 56

Easements - Profit a Prendre

What is a profit appurtenant? What case speaks to it?

Answer 56

A profit may be created appurtenant to a dom tenement, like an easement. It must comply w the 4 features in Ellenborough. Such a profit must be confined to the needs of the dom ten, in absence of a provision to contrary
Anderson v Bostock [1976]: Held an exclusive unlimited right to grazing couldn’t exist as a profit appurtenant and thus was a right unknown to the law.

Question 57

Easements - Profit a Prendre

What is a profit appendant?

Answer 57

A profit appendant is a profit annexed to land by operation of law as opposed to the act of parties. But such a grant of freehold land within a manor amounted to subinfeudation and so no new profits appendant of this
nature could be made in Ireland today after Quia Emptores 1290.

Question 58

Easements - Profit a Prendre

What is a profit in gross?

Answer 58

(c) In Gross: Unlike an easement, a profit can be enjoyed independently of any dom tenement i.e. in gross.
It’s still regarded as an interest in land and is as much an incorporeal hereditament as a profit appurtenant.

Question 59

Easements - Profit a Prendre - Turbary

What is Turbary and what cases speak to it?

Answer 59

Turbary: The right to dig and take away turf as fuel.
Dobbyn v Somers: Recognised the right to dig and take turf as fuel away.
Douglas v McLoughlin: The right is limited to removal for fuel and doesn’t extend to commercial operation.
Stevenson v Moore [1927]: Could be granted on a commercial basis but not as of right.