Easements Flashcards
What is an easement
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
Easements
Easements may be either positive or negative. An easement must not involve the servient owner in any expenditure
Re Ellenborough Park [1956]
- There must be a dominant and servient tenement
- The easement must accommodate the dominant tenement
- The dominant and servient tenement must be owned or occupied by different persons
- The right claimed must be capable of forming the subject matter of a grant
Hill v Tupper [1863]
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
The easement must be capable of forming the subject matter of a grant
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
Copeland v Greenhalf [1952]
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
Batchelor v Marlow [2001]
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
Kettel v Bloomfold [2012]
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
Regency villas title Ltd v Diamond Resorts (Europe) Ltd [2018]
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
Grant of an easement- Statute
In Local Acts of Parliament
Statutory easements in favour of public utilities
Grant of an easement- express grant
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
Grant of an easement- Implied Grant (Necessity)
An easement will only be applied by necessity where there estate cannot be used at all without it
Titchmarsh v Royston Water Co [1899]
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
Grant of an easement- Implied easement (Common Intention)
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
Liverpool City Council v Irwin [1977]
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
Wheeldon v Burrows [1879]
There must be common ownership and occupation to start with
Then divided the land selling the dominant part and retaining the servient part
- The quasi easement must be continuous and apparent
- It must be necessary to the reasonable enjoyment of the property
- At the time of the grant it must have been used for the benefit of the land
Grant of an easement- implied (statute)
S62 LPA 1925
Confirms that all rights and easements shall be conveyed with the land unless there are express word excluding them
Wood v Waddington [2015]
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
Presumed grant by prescription.
Under the Prescription Act 1832
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
Winterburn v Bennett [2016]
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
The prescription period- Common Law
A person claiming an easement must show user since time immemorial being the year 1189
The prescription period- Lost modern grant
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
The prescription period- The Prescription Act 1832
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
Reservation of an easement- express
An express reservation typically arises where a person sells a part or their land and reserves rights over the part they have sold
