easements

Question 1

What are easements

Answer 1

they are property rights, not estates but you have interest in someone else’s land that they own
You assert some power over someone else’s land

Question 2

What can they sometimes be referred to as

Answer 2

Incorporeal hereditmants
servitudes

Question 3

Incorporeal

Answer 3

intangible/non-physical rights

Question 4

Servitudes

Answer 4

dealing with rights u have over someone else’s land, maximises utility of how land is used

Question 5

Actual definition of an easement

Answer 5

a right attached to the dominant tenement of the land exercised over the servient land

Question 6

What are the types of easement

Answer 6

positive
negative

Question 7

Positive easemnent plus example

Answer 7

Right thal allows dominant tenement todo something positive over servient tenement
a right of way over someone else’s land

Question 8

Negative easement

Answer 8

One that restricts servient tenement from doung somehting
ie right to light, a cant build house that blocks b’s right to light from light coming from the road

Question 9

Are easements an ownership interest

Answer 9

no they are a limited and defined right in regards to the servient lands property

Question 10

Why are easements regulated?

Answer 10

land law regulates interests in property in order to prevent land from getting overburdened with 3rd party rights making it unappealing to purchase
These rights are indefinite and affect the world at large and if there weren’t restrictions in place this would affect the freedom of land owners
There may me situations where parties agree to an easement that is unclear and these manifest themselves into a problem in the future

Question 11

What case sets out the criteria for easements

Answer 11

Re Ellenborough park

Question 12

Whata re the criteria for easements set out in re Ellenborough park?

Answer 12

1. there must be a dominant tenement and a servient tenement- must be easily identifiable which land is benefiitted and which one is burdened
2. The dominant tenement and servient tenement owners must be different
3. The easement must benefit the land and not benefit the landowner- not a personal benefit
4. The easement must be capable of forming the subject matter of the grant.

Question 13

Applying the Ellenborough principle
The easement must benefit the land and not the landowner
State cases

Answer 13

Moody v Steggles
Facts: Concerned the plaintiffs who were pub owners who wanted to assert a right over the defendant’s wall putting a sign to advertise their pub.

Issue: Was this a personal benefit or benefit for the land?

Held: Easement was granted Benefitted the land for its use as a pub.

Hill v Tupper

Facts: concerned land that on a canal that was leased to the plaintiff and part of the agreement was that the plaintiff had the exclusive right to use boats on the canal. 3rd party came and started operating boats on the canal and pl argued that this broke the easement.

Held: That wasn’t an easement- exclusive rights didnt constitute an easement in ordinary law. The right to use boats on the canal was an easements but the aspect of exclusivity was more of a commercial benefit if anything

Question 14

An easement must be capable of forming the subject matter of the grant.
Explain

Answer 14

1. The right must be clear.
2. Dominant and servient tenement must be easily identifiable
3. The easement must not impose a positive burden on the servient tenement.
4. The courts are hesitant to recognise new easements

Question 15

The right must be clear.

Answer 15

There must be certainty and definiteness of the right in question so that it is clearly identifiable and so that successors of the land can clearly understand and be aware of the easement in the future.

Question 16

The easement must not impose a positive burden on the servient tenament

Answer 16

Refers to the idea that easements must not impose direct costs on servient tenements

Regis Property v Redman

Concerned dominant tenement trying to assert a right to hot water from the servient tenement

Held: Court rejected the existence of an easement- stated that it would impose a positive burden on the servient tenement of having to endure the costs of supplying hot water to them

Question 17

Courts are strict on recognising new easements
State cases

Answer 17

The courts are hesitant to recognise new easements that are negative in nature,ie. restrict the freedom of land owners but the possibility of new easements being recognised isnt closed

Phipps v Pears
Concerned 2 houses that werent attached but were very close together and one house was blocking the rain from the other that didnt have weatherproofing. One house wanted to demolish and rebuild and other house said easement to weatherproofing existed.

Held: Rejected the argument that weatherproofing could be recognised as an easement, said it would restrict the landowner’s right to demolish their home which would unduly inhibit development.

Treacy v Dublin Corporation

Facts: Concerned a situation where a dispute arose in respect to 2 terraced houses, as
terraced properties, they provided physical support to each other.

Issue: Whether in fulfilling its obligation to rebuild and provide physical support to the other terraced house, the council could also be required to weatherproof it.
Held: There wasn’t a separate easement to right to protection for weather, in this situation there was a demoltion that was going to remove support, it would be unrealistic;c to say that the type of support to be installed wouldn’t include weather protection
Weather protection was necessary for the right to support but it wasn’t an easement in itself.

Todd v Cinelli
Facts: Concerned 2 semi detached properties, one of the neighbours demolished their house without planning permission, the other house was extremely strained as a result of no support. Argument that the injured neighbours made was that there had been a breach of an easement as well as severe devaluation of the properties appearance-wise that should be compensated for.

Held: The courts noted that this was a case where it was a pair of houses that were built as one, and in terms of the foundation, they relied on each other for support therefore there was an automa;c right to support unlike in Phibbs.
It would be unfair to restrict the neighbour from redeveloping their property however, the redevelopment was not legitmate because they didnt get any planning permission. If they had applied for planning permission, there would be been conditions imposed to allow support for the neighbouring house.
The neighbours were en=tled to damages in relation to support and damages to the adverse appearance caused by the demolition.

Question 18

What is the Ouster Principle

Answer 18

reflects the idea that easements are limited rights.
Provides that an easement can not exclude the servient owner from possessing their land.

Question 19

Is the right to store things an easement?
State Case

Answer 19

Copeland v Greenhalf:

Concerned the plaintiff who owned a repair business and said he had the right to use the defendants strip of land to park and store lorries that he was fixing for an indefinite amount of time

Held: This could only be asserted through an adverse possession claim, it was beyond the limited scope of an easement insofar as it was implying that the dominant tenemant had an equal right to share and use the land of the servient owner.

Where the easement ousts the owner from using their land, it is out of the limited nature of an easement.

Question 20

Is the right to park on someone else’s land considered as an easement?
state 2 cases

Answer 20

Bachelor v Marlow

Concerned man that was parking on side of neighbours road from 8am to 6pm every monday to Friday.

Was this an easement?

No it was not an easement, when he was parked ownership of the land would be rendered illusionary

Shows that even when theres a restriction/ limit on how long u could park it would fall under the ouster principle.

Moncrieff v Jamieson

Drew a distinction between parking from exclusive possession and sole use for a purpose.
If it looks like a right to exclusivity possess- it will fall under the ouster principle
if it looks like a right to use for a particular purpose it could be compatible with an easement.
Sole use for a limited purpose wouldn’t prevent servient owner from retaining possession of their land.

Question 21

Where does Irish Law sit?
Name cases

Answer 21

Irish law is not very clear on where it lies
In Red font v Dock Management said that right to parking in relation to property development in Dublin could be deemed as an easement but the courts didnt go into much detail

AGS v Madison Estates
Easement could exist to parking in regards to developing property- the courts wont take a very restrictive approach of the ouster principle

Question 22

The nature of easements

Answer 22

Hunter v Canary wharf
Concerned the building of a tall tower that was surrounded by 2 story buildings. Small area of houses were reciving their signal from crystal palace that was now bing blocked by the building so they asserted a claim that an easement existed to good signal. and the construction was limiting this right.

Held: HoL said that this easement wasnt clear as ‘good’ was a very subjective term as its effect would be too far reaching . A big perimiter of ppl could have that alleged easement which would be hundreds of thousands if not millions worth of a class action- this would impose a huge restriction on development.

Easements should not unfairly restruct the freedom of land owners to develop their property.

Question 23

How do u work out if an easement has been granted?

Answer 23

By express creation
By equity
By implied easements:
Necessity
Common Intention
Non-Derrogation from grant
Wheeldon v Burrows Rule
Prescription

Question 24

Express creation of an easement

Answer 24

You intentionally grant an easement/execute it by deed:
Example: A owns land and splits iit into 2. Sells back end of land to B and grants right of way through their plot to allow B to access road. or Vice versa

Question 25

State the 2 ways in which easements can be created in equity

Answer 25

Estoppell
Doctrine of anticipation

Question 26

How are easements granted through estoppel

Answer 26

When one party makes a promise to another and other acts in detrimental reliance to that right prromised to be granted, equity can create an easement

Question 27

Through doctrine of anticipation

Answer 27

Walsh v Lonsdale principle- equity will anticipate creation of an easement even before deed has been executed if a contract has been signed

Question 28

Easements through necessity
State case that explains this

Answer 28

Generally in relation to rights of way
Concerns when a piece of land that is inaccessible/landlocked , the courts will infer an easement to allow access to that land

Pallaceanne management v AIB

Held: stated that easements through necessity arise when the owner of land sells part of their land to someone else and the only way to access that part of the land is through the rest of the owner’s property, so the owner gets to choose the right of way allocated to the purchaser. The easement through necessity will be abandoned once an alternative route of access is established.

Question 29

What will the courts do when easement is not created by person selling land

Answer 29

Will create an easement so that the parties intentions are fully realised

Necessity can only be argued when that easement of grant of access is the only way to access the property that would otherwise be inaccessible.

Question 30

Necessity can only be argued when that easement of grant of access is the only way to access the property that would otherwise be inaccessible.
State cases

Answer 30

Dwyer Nolan v Kingscroft
Concerned purchase made for sale of land that was inaccessible at the time, but developer showed plans that a road would be built to access it, the developer changed the plans and the land was innaccessible.

Held: granted an easement of access/ right of way to match the intention that the land was supposed to be accessible so that the property could be developed.

Frank Towey v South Dublin CC
Concerned a pub in the middle of a dual carriageway in lucan and there was a gap in the carriageway allowing people to turn directly into the pub instead of going all alomg the way and then u- turning. The gap was closed and pub argued that this was in breach of an implied easeement to right of way.

Held: easement didnt exist as there were alternative routes to access the property, although this was more convenient it did not mean it fits the grounds for necessity.Easement through necessity would necessitate no form of access to the property.

Begley v Damesfield
Concerned puchasing to dock his boat in marina and found that there wewre rocks under his dock which would cause damage to his boat and said that there was an implied easement to access birth

Held: He was aware of the rocks prior to the easement. He can’t use argument for right of way for when he finds that the property hes purchased is not in line his intentions to use it/ its inconvenient

Question 31

Easements through common intention

Answer 31

When both parties have both agreed on how the land is to be used an an easement is necessary to fulfil this agreement/ intention

Question 32

State the cases on Easements through. common intention

Answer 32

Wong v Beaumont
Concerned basement of building for the use of a Chinese restaurant. Lease provided that the chinese restaurant was to fully comply with the health and safety requirements and that it was to not allow any smells to be released into other areas of the property. The ventillation already installed in the building wasnt adequate for this so the lessee sought to argue that an easement be granted for the ventilation tube to run along the building of the landlord so that the basement can be used for its common intention.

Held: The easement was granted because the lease provided that the basement be used for a definitive purpose and the easement allowing the duct to run through the building was necessary for that purpose.

O’Flaherty v Setanta Centre

Concerned book store named reads from nassau street and road accessing it from nassau street was closed off and they argued that there was an easement through common intention and were seeking an injunction prohibiting building blocking the road

Held: The argument made was plausible and they granted the injunction.

Question 33

Difference between easement for common intention and easement for necessity

Answer 33

Necessity- Easement granted because theres no other way to access the property

Common intention: easement granted so that the land can be used for what its intended to be used for

Question 34

Easement through non derogation from grant

Answer 34

An easement will be implied by the court to prevent someone from deviating from what they granted the land for.
Selling land should allow you to use the land in which you’ve retained to prevent the land that you’ve sold from being used for what it is intended.

Question 35

What case concerns easements through non-derogation of grant

Answer 35

Harmer v Jungle
concerned 21 lease granted for use of a warehgouse to store explosives. Both parties knew that in order to get a license to store explosives no buildings could be within the vicinity in case of explosion. Knowing this, the seller of the land wanted to build a property adjacent to the warehouse which prevented the lessee from getting a license. Was seeking easement through non-derogation of grant to prevent construction.

Held: Order granted in favour of the tenant.

Question 36

Which case confirmed that easement through non-derogation of grant could be a stand alone basis in irish law?

Answer 36

Conneran v Corbett and sons

concenred unit in a shopping centre. Only one designanted point of deliveries and deliveries could not be accepted through any other point. Because of redevelopment the delivery point would be blocked. Tenant argued that this would be a derrogation from the grant if landlord was entitled to block access.

Held: ruled in favour of the tenant saying that the tenant was mandated to use one point of access for deliveries, and in blocking that, it would be deviating from the grant.

William Bennett Construction v Greene
Held: Accepted that non-derogation is a basis for an easement and acknowledged that it was closely linked to common intention.

Question 37

What is the rule in Wheeldon and burrows?

Answer 37

Provided that there is a quasi easement/ invisible easement that exists when land is in single occupation that manifests itself into an easement when land is divided.
But there must be evidence to show that there was continuous use of that right over the land.
And the right has to be reasonably necessary for the enjoyment of the property.

Question 38

What 2 statutes were created reforming the principle in wheeldon and burrows

Answer 38

Section 40(2) of the LCLRA

Section 6 of the Conveyancing Act

Question 39

Section 40(2) of the LCLRA

Answer 39

When there is a grant of land and retention of land, you are granting that land with rights that are necessary for the enjoyment of that land that could be reasonably contemplated by both parties- no longer need for it to be continuous and apparent

Question 40

Section 6 of the Conveyancing Act

Answer 40

When u sell land, it comes with all the rights that are attached to it

Question 41

How did common law controversially interpret section 6

Answer 41

That it meant that even permissions/personal rights that someone had over land could be converted into an easement

Question 42

What legislation does not agree with this?

Answer 42

Section 71 of the LCLRA

Question 43

Section 71 of the LCLRA

Answer 43

No transformative doctrine exists here
71(3)(a) makes it clear that no new interests are created/no rights are expanded and no interests are turned into full rights upon the transfer of land

Question 44

Easement through prescription.

Answer 44

Similar to adverse possession
People can claim an easement based on the fact that they have exercised a right over their neighbour’s piece of land over an extended period of time

Question 45

Whats the main difference to AP

Answer 45

The law presumes that the servient owner has reluctantly accepted the exercise of the right- fair degree of legal fiction

Question 46

What are the 3 methods of prescription

Answer 46

1. Common Law
   2.Lost modern grant
2. The prescription Act

All 3 means involve acquiescence on the part of the servient owner and presume that a grant of an easement has been made in the past fictiously despite no evidence of a grant being made.

Question 47

Continuous user as of right, what does this entail?

Answer 47

No force- if the neighbour objects to you carrying out that right over their land, then this contradicts it

No Secrecy- the use cant be hidden or intentionally concealed insofar as a neighbour, who was paying attention to their land would be able to object

No permission- no consent would have to be given to exercise the right in question

Question 48

Continuous user cases:

Answer 48

Orwell park v Henihan
Continuous use does not amount to incessant use. It’s use that a reasonable neighbour would be able to notice that such right is being asserted. And because the use is so obvious the owner will be deemed to have acquiesced to that use

Flanaghan v Mulhal
Concerned right of way over someone’s farm land

Evidence court take into account
1. Both parties views on how land was used
2. Neighbours and nearby residents on how they say the land was used on the day to day
3 Any physical evidence like track marks
Physical evidence not an absolute factor and provides good evidence
And because this case concerned farm land and there weren’t any tracks made in the mud or on the soil, no evidence of easement throigh prescription

Question 49

Common law prescription

Answer 49

Easement would said to have existed from 1189 after 20 years of uninterrupted use
However rebutted if land in question couldn’t have existed prior to or during 1189

Question 50

Lost modern grant
State case

Answer 50

Presumes that after 20 years uninterrupted use an easement had been granted through the execution of a deed that had been lost
Presumption couldn’t be rebutted even if owners could show evidence of no such grant that existed
Only way to be rebutted is if the owner lacked legal capacity during the 20 years ie minor or mentally incapacitated
LMG proceedings could be brought any time after 20 year period ended

Orwell park management v henihan
Showed use of road for transporting vehicles for over 35 years

Held: easement granted by virtue of lost modern grant

Question 51

Prescription Act

Answer 51

20 years continuous use for rebuttable easement, proceedings must take place immediately after 20 year period
40 years continuous user for absolute easement that could only be rebutted by proof of consent through deed/writing

20 year continuous user for indefensible right to light provided no consent throigh seed or righting

Question 52

What legislation rhay is no longer binding acted on this

Answer 52

Sections 33- 37 of LCLRA

Question 53

Sections 33-37 of LCLRA NO LONGER BINDING

Answer 53

Abandoned all 3 ways of prescription
Aligned period w adverse possession
12 years for residential and 30 years for state
All easements had to be registered on the land registry and issued by a court order
Set up transitional arrangements to allow for past easements to be registered- cut off period was November 2021

Question 54

LCLRA 2021

Answer 54

Repealed 2009 act
Registering easements was optional and not compulsory

Question 55

Section 6 LCLRA 2021

Answer 55

Repealed s33-37 of LCLRA 2009

Question 56

section 22 LCLRA 2021

Answer 56

If u are dealing with possession that took place before 2009, whatever method of prescription used
If staggered or after 2009- only lost modern grant applicable

Question 57

Registration, what legislation

Answer 57

Section 49 of the registration of title act

Question 58

S49 of registration of title act

Answer 58

Allows someone to register their interest in land on the land registry
Easement will be registered as a burden on the servaient land

Question 59

Extinguishment of easement and non-use

Answer 59

Very difficult to establish extinguishment of an easement because of non use

Orwell park management v henihan
Near non use was evidence of intention to abandon but not evidence of abandonment. Has to be sufficient and compelling evidence to show that an easement has been abandoned

Carol v Sheridan
Near non use doesn’t mean abandonment- If grass was left to grow for a long time and hadn’t been cut and wasn’t passable for a period of time- still not evidence for abandonment

Question 60

View on extinguishment

Answer 60

In order to extinguish an easement you have to buy out the beneficiary of that right