Easements

Question 1

Analysis: Does (claimant) have an easement to use (defendant)’s property by virtue of the lost modern grant?

Answer 1

While easements cannot be acquired over registered land by common law, the acquisition of such easements before the land was registered will continue to bind (servient owner) as an overriding interest (s 46(1)(d) LTA).

(FIRST, does the right possess the four characteristics of an easement?)

To constitute a valid easement, the right must possess the four requirements of an easement (Ellenborough Park).

First, there must be a dominant and servient tenement. This is met on the facts.

Second, the right must accommodate the dominant tenement (i.e be connected with its enjoyment)

Considering whether the right is reasonably necessary for the enjoyment of the dominant tenement, this is likely / unlikely to be the case because…
(A comparison can be made with Regency Villas, where the right to access recreational facilities was seen as part of the reasonable enjoyment of a dominant tenement in our modern life)
(A comparison can be made with Moody v Steggles, where the right to conduct a business was accepted as being part of the reasonable enjoyment of the dominant tenement)
(A comparison can be made with Dalton v Angus, where the right to lateral support was seen as part of the reasonable enjoyment of the dominant tenement)

Considering if there is sufficient physical proximity between the dominant and servient tenement (Bailey v Stephens), this is met / not met on the facts because…

Third, the dominant and servient tenement must be owned or occupied by different persons. This is met on the facts.

Fourth, the right claimed must be capable of forming the subject matter of a grant.

1. There must be a capable grantor and grantee (i.e Both must have title to their land).
2. The right must be sufficiently definite and definable (Copeland).
3. The right must be within the general nature of rights that have been recognised as easements, and the law is generally reluctant to recognise new negative easements (Phipps v Pear). In recognising new easements, the court will consider the extent to which the rights of the alleged servient tenement would be restricted by the recognition of the new easement (Hunter v Canary Wharf).
4. The easement must not impose a positive burden on the servient owner i.e the servient owner should be able to remain passive. (Moncrieff)
5. The right should not overly infringe the servient owner’s possession and control of the servient tenement (London & Blenheim, Moncrieff).

(SECOND, is there an implied grant of the easement?)

Assuming that (easement) fulfils the 4 characteristics of an easement, the next issue is whether such an easement was acquired by the doctrine of lose modern grant.

To acquire easement by prescription by the lost modern grant, the proprietor of the dominant tenement must establish at least 20 years of uninterrupted enjoyment of the alleged easement. The court will adopt the legal fiction that the grant was made, regardless of any direct evidence that no grant was made (Lim Hong Seng).

On the facts, …

Question 2

Analysis: Has the easement been extinguished due the unity of the dominant and servient tenement?

Answer 2

Since both tenements have come into the ownership and occupation of a single person, any easement over the servient tenement will be extinguished (s 100 LTA)

Question 3

Analysis: Can the purchaser / lessee of a dominant tenement benefit from the registered easement?

Answer 3

The registered easement passes to the transferee / lessee of the dominant tenement even if there is no express mention of it in the transfer or lease (s 101(1) LTA).

Question 4

Analysis: Was an easement acquired by express grant or reservation?

Answer 4

Even if the easement was executed in an instrument of grant (s 97(1)) or reserved out of a transfer of land (s 97(2)), the Registrar can only register an easement if the easement is recognised in law (s 95(1)(a)) and is expressed to be for the benefit of a dominant tenement that belongs to a person who is not also the owner of the servient tenement (s 95(1)(b)).

Thus, the (easement) must still meet the four requirements of an easement in Ellenborough Park.

First, there must be a dominant and servient tenement. This is met on the facts.

Second, the right must accommodate the dominant tenement (i.e be connected with its enjoyment)

Considering whether the right is reasonably necessary for the enjoyment of the dominant tenement, this is likely / unlikely to be the case because…
(A comparison can be made with Regency Villas, where the right to access recreational facilities was seen as part of the reasonable enjoyment of a dominant tenement in our modern life)
(A comparison can be made with Moody v Steggles, where the right to conduct a business was accepted as being part of the reasonable enjoyment of the dominant tenement)
(A comparison can be made with Dalton v Angus, where the right to lateral support was seen as part of the reasonable enjoyment of the dominant tenement)

Considering if there is sufficient physical proximity between the dominant and servient tenement (Bailey v Stephens), this is met / not met on the facts because…

Third, the dominant and servient tenement must be owned or occupied by different persons. This is met on the facts.

Fourth, the right claimed must be capable of forming the subject matter of a grant.

1. There must be a capable grantor and grantee (i.e Both must have title to their land).
2. The right must be sufficiently definite and definable (Copeland).
3. The right must be within the general nature of rights that have been recognised as easements, and the law is generally reluctant to recognise new negative easements (Phipps v Pear). In recognising new easements, the court will consider the extent to which the rights of the alleged servient tenement would be restricted by the recognition of the new easement (Hunter v Canary Wharf).
4. The easement must not impose a positive burden on the servient owner i.e the servient owner should be able to remain passive. (Moncrieff)
5. The right should not overly infringe the servient owner’s possession and control of the servient tenement (London & Blenheim, Moncrieff).

Question 5

Analysis: Has (dominant owner) abandoned the easement?

Answer 5

Since there is a period of non-use of the easement for a period exceeding 12 years, (servient owner) can apply to the Registrar to cancel the easement (s106(1)(c) LTA). The easement will be cancelled if (dominant owner) does not object within 1 month of notice.

Alternatively, (servient owner) may rely on the common law doctrine of abandonment or partial abandonment (See notes for all the factors involved)

Question 6

Analysis: Does (claimant) have an easement to park her vehicles / deposit his objects on the (defendant’s) property?

Answer 6

The issue is whether the (claimant’s) right to park vehicles / deposit his objects on the servient tenement can constitute a valid easement.

To constitute an easement, the right must possess the four characteristics of an easement (Ellenborough Park). As there is clearly a dominant and servient tenement that is each owned by a different person, the contentious requirements are (1) whether a right to park will accommodate a dominant tenement and (2) whether it is capable of forming the subject matter of a grant.

The first contentious requirement is whether the right will accommodate the dominant tenement.

Considering whether the right is reasonably necessary for the enjoyment of the dominant tenement, this is likely / unlikely to be the case because…
(A comparison can be made with Regency Villas, where the right to access recreational facilities was seen as part of the reasonable enjoyment of a dominant tenement in our modern life)
(A comparison can be made with Moody v Steggles, where the right to conduct a business was accepted as being part of the reasonable enjoyment of the dominant tenement)
(A comparison can be made with Dalton v Angus, where the right to lateral support was seen as part of the reasonable enjoyment of the dominant tenement)

Considering if there is sufficient physical proximity between the dominant and servient tenement (Bailey v Stephens), this is met / not met on the facts because…

The second contentious requirement is whether the right is capable of forming the subject matter of a grant. Here, there is a capable grantor and grantee, a right to park has been recognised in the general nature of rights that have been recognised as easements (e.g. Moncrieff), and the right to park does not impose a positive burden on the servient owner. Thus, the remaining sub-requirements are whether the right is sufficiently definite and whether it overly infringes on the servient owner’s possession and control of the servient tenement (Copeland, Moncrieff).

(First, it is likely that this right is sufficiently definite because….
This is similar to Moncrieff, where the right to park was sufficiently definite because the claimed parking area was within a defined pink boundary which only allowed 1- 2 vehicles)

(First, it is unlikely that this right is sufficiently definite because….
This is similar to Copeland, where the alleged right to deposit vehicles was too undefined as it allowed vehicles to be left on the ground for an indefinite time, within an undefined part of the land)

Second, on whether the right would overly infringe the servient owner’s ownership of the servient tenement, the cases have proposed different ‘tests’:

Considering whether the servient owner would be left without any reasonable use of his land (London & Blenheim Estates), on the facts…

Considering the proportion of the servient land subject to the exercise of the right (London & Blenheim Estates), on the facts…

Considering whether the servient owner would retain possession and be able to exercise reasonable control of the land (Moncrieff), on the facts…
(This is similar to / different from Moncrieff, where the servient owners were still able to park their cars in the allocated parking area from time to time). Thus, it is likely that the right to park will not overly infringe the servient owner’s use of their land.)

(An analogy can be made with Wright v Macadam, where the right to store coal in a small shed was held to be capable of forming an easement)

On balance, it is likely that the right would not overly infringe / would overly infringe the servient owner’s possession and control of the land.

Question 7

Analysis: Was there an implied grant of (easement on the facts) before the land was registered?

Answer 7

While easements cannot be acquired over registered land by common law (s 97 (1) LTA), the acquisition of such easements before the land was registered will continue to bind (servient owner) as an overriding interest (s 46(1)(d) LTA).

(FIRST, does the right possess the four characteristics of an easement?)

To constitute a valid easement, the right must possess the four requirements of an easement (Ellenborough Park).

First, there must be a dominant and servient tenement. This is met on the facts.

Second, the right must accommodate the dominant tenement (i.e be connected with its enjoyment)

Considering whether the right is reasonably necessary for the enjoyment of the dominant tenement, this is likely / unlikely to be the case because…
(A comparison can be made with Regency Villas, where the right to access recreational facilities was seen as part of the reasonable enjoyment of a dominant tenement in our modern life)
(A comparison can be made with Moody v Steggles, where the right to conduct a business was accepted as being part of the reasonable enjoyment of the dominant tenement)
(A comparison can be made with Dalton v Angus, where the right to lateral support was seen as part of the reasonable enjoyment of the dominant tenement)

Considering if there is sufficient physical proximity between the dominant and servient tenement (Bailey v Stephens), this is met / not met on the facts because…

Third, the dominant and servient tenement must be owned or occupied by different persons. This is met on the facts.

Fourth, the right claimed must be capable of forming the subject matter of a grant.

1. There must be a capable grantor and grantee (i.e Both must have title to their land).
2. The right must be sufficiently definite and definable (Copeland).
3. The right must be within the general nature of rights that have been recognised as easements, and the law is generally reluctant to recognise new negative easements (Phipps v Pear). In recognising new easements, the court will consider the extent to which the rights of the alleged servient tenement would be restricted by the recognition of the new easement (Hunter v Canary Wharf).
4. The easement must not impose a positive burden on the servient owner i.e the servient owner should be able to remain passive. (Moncrieff)
5. The right should not overly infringe the servient owner’s possession and control of the servient tenement (London & Blenheim, Moncrieff).

(SECOND, is there an implied grant of the easement?)

Assuming that (easement) fulfils the 4 characteristics of an easement, the next issue is whether such an easement was acquired by an implied grant by necessity, common intention, the rule in Wheeldon v Burrows, or s 6 of the CLPA.

(Implied Grant by Necessity)

An easement to confer a grantee a right of way through the grantor’s land would be implied if it is otherwise impossible for the grantee to access the property which has been sold or leased to him (Kian Seng)

However, in the case of tenancies, instead of implying such an easement, the court would prefer to imply a contractual term that the tenancy would come to an end if the tenant had lost its original access to its premises (Kian Seng).

On the facts, …
(In Kian Seng, the court would have found it necessary to imply an easement allowing for a right of way through the defendant’s portion of a building after the only side-gate access to the plaintiff’s middle portion of the building was permanently closed. However, the court ultimately declined to do so because it was more appropriate to imply a term that the tenancy agreement would come to an end the moment the plaintiff’s access to its premises was closed.)

(Implied Grant by Common Intention)

An easement may be implied if it is necessary to give effect to the common intention of the parties to a grant of real property (Pwllbach, Wong v Beaumont Property)

(In Beaumont Property, the court held that it was necessary to imply an easement to allow a ventilation system to be installed through the upstairs premises to give effect to the common intention for the premises to be used as a restaurant.)
(In Pwllbach, the court held that a common intention for the premises to be used for mining did not necessarily mean an easement to emit coal dust over the neighbouring land, a type of nuisance, would be implied.)

(Implied Grant by the Rule in Wheeldon v Burrow)

Since (servient owner) had granted the (dominant tenement) to the (dominant owner), the rule in Wheeldon v Burrow may apply to pass on any quasi-easements previously enjoyed in favour of the quasi-dominant tenement to the grantee.

Firstly, the Wheeldon v Burrows rule only applies when there is a grant of unregistered land, since s 97(1) LTA excludes the operation of common law acquisition of easements for registered land. On the facts, …

Secondly, the quasi-easement must be ‘continuous and apparent’. A quasi-easement is ‘continuous’ as long as it has been enjoyed over substantial periods of time and ‘apparent’ if it is detectable on careful inspection. On the facts, …

Thirdly, the quasi-easement must also be reasonably necessary for the enjoyment of the land. The case-law is not entirely united on whether the ‘continuous and apparent’ and ‘‘necessary for reasonable enjoyment’ are cumulative requirements. While the preferred view is that they are cumulative (Gray & Gray), Ward v Kirkland has suggested that the ‘continuous and apparent’ requirement would apply only to positive easements, and the ‘necessary for reasonable enjoyment’ requirement only to negative easements.

On the facts, …
(An analogy can be made with Ward v Kirkland, the court rejected the plaintiff’s claim for an easement to clean the windows on the upper level of a house by standing near the boundary marking off the neighbouring land, because there was no physical mark to indicate the continuous and apparent use of the right)

Finally, the quasi-easement must also be in current use at the time of the grant. On the facts, …

(Implied Grant by s 6 CLPA)

An easement may also be acquired by implication via s 6 CLPA, as all “rights and advantages whatsoever appertaining to or reputed to appertain to land” has been judicially interpreted to include continuous and apparent quasi-easements (Soymots) and licenses (Wright v Macadam).

As a starting point, s 6 CLPA only applies upon a conveyance of unregistered land. Per s 53(1) CLPA, a conveyance must be a deed in English (unless it is a lease under 7 years).
On the facts, …

To pass via s 6 CLPA, the quasi-easements must be continuous and apparent (Soymots). A quasi-easement is ‘continuous’ as long as it has been enjoyed over substantial periods of time and ‘apparent’ if it is detectable on careful inspection. On the facts, …

Alternatively, s 6 may also transform bare licenses into easements (Wright v Macadam). Since the (right on the facts) was merely a license, s 6 will operate to transform that license into an easement.
(A reference can be made to Wright v Macadam, where a bare license to store coal in the landlord’s coal-shed was transformed into an easement when a new tenancy was granted)

(Easement in Equity)

(Placeholder)

Question 8

Analysis: Was there an implied reservation of (easement on the facts) before the land was registered?

Answer 8

While easements cannot be acquired over registered land by common law, the acquisition of such easements before the land was registered will continue to bind (servient owner) as an overriding interest (s 46(1)(d) LTA).

(FIRST, does the right possess the four characteristics of an easement?)

To constitute a valid easement, the right must possess the four characteristics of an easement (Ellenborough Park).

First, there must be a dominant and servient tenement. This is met on the facts.

Second, the right must accommodate the dominant tenement (i.e be connected with its enjoyment)

Considering whether the right is reasonably necessary for the enjoyment of the dominant tenement, this is likely / unlikely to be the case because…
(A comparison can be made with Regency Villas, where the right to access recreational facilities was seen as part of the reasonable enjoyment of a dominant tenement in our modern life)
(A comparison can be made with Moody v Steggles, where the right to conduct a business was accepted as being part of the reasonable enjoyment of the dominant tenement)
(A comparison can be made with Dalton v Angus, where the right to lateral support was seen as part of the reasonable enjoyment of the dominant tenement)

Considering if there is sufficient physical proximity between the dominant and servient tenement (Bailey v Stephens), this is met / not met on the facts because…

Third, the dominant and servient tenement must be owned or occupied by different persons. This is met on the facts.

Fourth, the right claimed must be capable of forming the subject matter of a grant.

1. There must be a capable grantor and grantee (i.e Both must have title to their land).
2. The right must be sufficiently definite and definable (Copeland).
3. The right must be within the general nature of rights that have been recognised as easements, and the law is generally reluctant to recognise new negative easements (Phipps v Pear). In recognising new easements, the court will consider the extent to which the rights of the alleged servient tenement would be restricted by the recognition of the new easement (Hunter v Canary Wharf).
4. The easement must not impose a positive burden on the servient owner i.e the servient owner should be able to remain passive. (Moncrieff)
5. The right should not overly infringe the servient owner’s possession and control of the servient tenement (London & Blenheim, Moncrieff).

(SECOND, is there an implied reservation of the easement?)

Assuming that (easement) fulfils the 4 characteristics of an easement, the next issue is whether such an easement was acquired by implied reservation. While the default rule is that a grantor must expressly reserve any easements for the benefit of the land which he retains, the only two exceptions are (1) implied easements by way of necessity and (2) to give effect to a common intention (Re Webb, Seah Syn Kim).

(Implied Reservation by Necessity)

An easement to confer a grantee a right of way through the grantor’s land may be implied if it is otherwise impossible for the grantee to access the property (Seah Sye Kim, Kian Seng)
(In Seah Sye Kim, the court did not find it necessary to imply such an easement because it was only inconvenient, but not impossible, to access the plaintiff’s property.)

(Implied Reservation by Common Intention)

To establish common intention to imply a reservation of an easement, there must be the “clearest evidence” and the implication must be ‘conclusively indicated’ without ambiguity at the time of the conveyance (Seah Sye Kim). The mere fact that the grantee was aware of any quasi-easements at the time of the grant is not sufficient by itself to establish a common intention to imply such easements (Webb’s Lease).

On the facts, …
(In Seah Syn Kim, the court held that there was no common intention that the road leading up the plaintiff’s and defendant’s bungalows was intended to be used as a common driveway instead of a dual driveway, because there was no evidence that the plaintiffs had ever used the defendant’s side of the driveway to access their bungalow, and there was no family relationship between the two parties that would support an inference)

(Easement in Equity)

(Touch up after revising PE)
Since (claimant) had suffered a detriment in reliance of (defendant’s) assurance that he would provide (the easement), (claimant) may be entitled to an easement by proprietary estoppel.

An analogy can be made with ER Ives, where an easement for a right of way was acquired in equity because the defendant had stood by while the plaintiff constructed a garage on his land in a way accessible only from the defendant’s driveway. Similarly here…

An analogy can be made with Crabb v Arun DC, where an easement for a right of way was acquired in equity because the plaintiff did not reserve a right of way for himself in reliance on the defendant’s assurance.