Easements

Question 1

What is an easement

Answer 1

An easement is a right attached to one piece of land which allows the owner of that land either to use the land of another person in a particular manner or restrict its use by that other person to a particular extent

Question 2

Easements

Answer 2

Easements may be either positive or negative. An easement must not involve the servient owner in any expenditure

Question 3

Re Ellenborough Park [1956]

Answer 3

1. There must be a dominant and servient tenement
2. The easement must accommodate the dominant tenement
3. The dominant and servient tenement must be owned or occupied by different persons
4. The right claimed must be capable of forming the subject matter of a grant

Question 4

Hill v Tupper [1863]

Answer 4

An owner of the bank and the bed of a canal and leased the land on the bank to Hill and gave him the exclusive right to put his pleasure boats in the canal. Tupper put his own boats on the canal and Hill sued him. It was held he only had a licence as it was not a benefit to the dominant land

Question 5

The easement must be capable of forming the subject matter of a grant

Answer 5

There must be a capable grantor and grantee
The right must be sufficiently definite
The right must be within the general nature of rights capable of existing as easements

Question 6

Copeland v Greenhalf [1952]

Answer 6

The defendant used a narrow strip of land belonging to the claimant for over 50 years for storing vehicles undergoing or awaiting repairs failed in his claim for an easement as this amounted to joint user of the land

Question 7

Batchelor v Marlow [2001]

Answer 7

M claimed a prescriptive right to park up to 6 cars Monday to Friday between 9:30am & 6pm on Bs land. The court held that the right was incapable of being an easement because B would have no reasonable use of his land

Question 8

Kettel v Bloomfold [2012]

Answer 8

This concerned a landlord who wanted to build over the parking spaces used by his tenant. The spaces did not form part of the lease. The court held that the landlord still had reasonable use of the land and so an easement was found

Question 9

Regency villas title Ltd v Diamond Resorts (Europe) Ltd [2018]

Answer 9

This concerned timeshare apartments using the recreational facilities in the mansion
The court held provided the rights were for the benefit of the dominant tenement it did not matter that the enjoyment of those rights was the primary reason why people were attracted the the rights

Question 10

Grant of an easement- Statute

Answer 10

In Local Acts of Parliament
Statutory easements in favour of public utilities

Question 11

Grant of an easement- express grant

Answer 11

Express grants are usually made be in clueing express words of grant into a conveyance of the legal estate. If created by deed and equivalent to a term of years absolute the easement will be legal. If the easement is created in writing and meets the requirements of s2 Law of Property (Miscellaneous Provisions) Act 1989 the easement will be equitable

Question 12

Grant of an easement- Implied Grant (Necessity)

Answer 12

An easement will only be applied by necessity where there estate cannot be used at all without it

Question 13

Titchmarsh v Royston Water Co [1899]

Answer 13

An easement of necessity was refused as the claimant was not completely landlocked he did have access to the highway down a 20 ft embankment

Question 14

Grant of an easement- Implied easement (Common Intention)

Answer 14

Easements may also be implied in favour of a grantee of land where it is necessary in order to give effect to the common intention of the parties

Question 15

Liverpool City Council v Irwin [1977]

Answer 15

A tenant living in the ninth floor of a 15 storey building had an easement to use the stairs and lifts. This easement was implied in the absence of any express agreement. It must have been intended by the parties that the tenant would be able to reach the 9th floor

Question 16

Wheeldon v Burrows [1879]

Answer 16

There must be common ownership and occupation to start with
Then divided the land selling the dominant part and retaining the servient part

1. The quasi easement must be continuous and apparent
2. It must be necessary to the reasonable enjoyment of the property
3. At the time of the grant it must have been used for the benefit of the land

Question 17

Grant of an easement- implied (statute)

Answer 17

S62 LPA 1925
Confirms that all rights and easements shall be conveyed with the land unless there are express word excluding them

Question 18

Wood v Waddington [2015]

Answer 18

The land was previously owned by a common person and sold to the Woods predecessors and Mr Waddington. The Woods wanted to use the bridleways over Mr Waddingtons land. On the first bridleway the tracks were visible and had been used once a month. The Woods were successful in their claim for easements under s62

Question 19

Presumed grant by prescription.
Under the Prescription Act 1832

Answer 19

User as of right
Without force, without secrecy, without permission
Continuous user
User by the fee simple
User against the fee simple
The prescription period

Question 20

Winterburn v Bennett [2016]

Answer 20

The customers of a fish and chip shop had used the neighbouring car park although there was a sign reading private car park. This was shown as a continuous objection

Question 21

The prescription period- Common Law

Answer 21

A person claiming an easement must show user since time immemorial being the year 1189

Question 22

The prescription period- Lost modern grant

Answer 22

If a claimant can show 20 years used as of right the courts presume that at some time since 1189 an easement was granted by deed but the deed was lost

Question 23

The prescription period- The Prescription Act 1832

Answer 23

PA 1832
20 years this shall not be defeated by proof that it commenced later than 1189 there must be uninterrupted enjoyment
40 years is deemed absolute and indefensible unless this was enjoyed by consent or agreement

Question 24

Reservation of an easement- express

Answer 24

An express reservation typically arises where a person sells a part or their land and reserves rights over the part they have sold

Question 25

Reservation of an easement- implied reservation

Answer 25

The general rule is that the courts will not imply any easements in favour of a seller

Question 26

Reservation of an easement- implied (necessity)

Answer 26

Arises in situations such as landlocked land it is very strict so claims must be essential

Question 27

Reservation of easement- implied (common intention)

Answer 27

The burden of proof lies upon the seller and it is a very heavy burden

Question 28

Stabbing v Baldwin [2019]

Answer 28

The question was whether a proposed development would mean excessive use of a right of way. The claimant wanted to build four terraced houses in place of an existing dwelling. The court held that there was no radical change in the use of the benefitting land and the burden was not excessive

Question 29

Extinguishment of easements

Answer 29

1. By statute
2. By release
   Express or Implied
3. Unity of ownership and possession