Easements Flashcards
what is an easement?
a right over one piece of land for the benefit of another piece of land- usually neighbouring
what is the recipe for an easement?- give case too
Re Ellenborough Case 1956:
-D and S tenement
-D and S owned by different people
-Must benefit D tenement
-‘subject matter of a grant’
must benefit D tenement
Hill v Tupper [1863]- not a personal commercial advantage
diversity of ownership
Roe v Siddons [1888]- you can’t have an easement with yourself
list circumstances in which a right may not amount to an easement- links to 4th requirement in Re Ellenborough Park
- ousting the servient tenement- Copeland 1952; Batchelor 2003; De la Cuona [2017]
-require the expenditure of money- Redmon; Regency Villas;
-be too vague- Chaffe v Kingsley [2000]
what may be an exception for the expenditure rule
fencing- crow v wood
what are the ways of acquiring an easement
-express; implied; prescription
implied grant can be done in 4 different ways
-necessity, common intention, s.62, wheeler v burrows
necessity- case
Pryce 1966-essential not merely desirable
common intention-case
Donovan 2014
Why may be case of Regency Villas be important?
government policies for high density homes may lead to a shortfall in private amenity spaces, so recreational easements will be important
the discharge and removal of these easements might be reform- s.84
Right of drainage is a recognised easement- case law
Attwood [2001]
Right of support is a recognised easement- case law
Jones v Pritchard [1908]- although not obliged to maintain things like roofs and walls
case law on parking and storage easements to contrast
Wright v Macadam [1947]- coal in shed- allowed
Batchelor v Marlow- not allowed due to exclusivity of occupation
storage easement test- reasonable use
London & Bleinham Ltd v Ladbroke Parks [1992]
what is a profit a prendre?
right to take something belonging to another land
what’s a difference between easements and profits?
easements cannot exist in gross (not be attached to land)
What is the statutory magic found in s.62?
it can turn existing rights into legal easements after a conveyance takes place
Wood v Warrington
diversity of occupation is not necessary for the operation of s.62
How does the rule in Wheeler v Burrows differ from s.62?
although the test in w v b is more demanding it still may be used when there is no conveyance (which is a requirement for s.62)
what is a quasi-easement?
a right one hand with themselves- walked over plot A to get to Plot B- both occupied by person 1
What are the 3 ways in which prescription can operate?
-common law
- lost modern grant
- prescription act 1832
prescription- the requirements- ‘as of right’
nec vi- without force
nec clam- without secrecy
nec precario-without permission
possession and control test
Moncrieff v Jamieson [2007]
the existence of an alternative may preclude the existence of an implied necessity easement
Manjang v Drammah [1990]
common intention-implied easement
Wong v Beaumont Property Trust Ltd [1965]; Donovan [2014]
requirements of the operation of wheeler v burrows rule
-continuous and apparent- Hansford v Jago [1921]- worn tarmac road
-necessary for the reasonable enjoyment of land
-used by the owner- not by his tenant- Kent [2007]
-no contrary intention
discussion between s.62 and w v b
Browning v Jack [2021]
common law prescription
since 1189
lost modern grant
Orme v Lyons- 20 years
prescription act 1832
allows for interruptions- Flight v Thomas 1841
how do the 20 and the 40 years periods differ?- prescription
where use continues for 40 yrs, the existence of permission will not defeat the claim
‘Context is everything’
baroness hale Stack v Dowden
What does the case of Churston allude to in terms of easements of fencing?
express grant by deed may allow for such easement
Lord Diplock in Jones v Price- comment on fencing easements
f. easements are sui generis (unique)
What are potential brakes to the hysterical outcry after Regency Villas case?
-such easement would only arise by express grant
-s.84 is proposed by Law Com to extend to the discharge of easements too
-decision is based on complex factual matrix- rigorous assessment of circumstances
Easement to create noise; and what can be the problems
Coventry v Lawrence (2014); intensity and duration -M. Dixon
The law can accommodate itself to changing circumstances of society
Dyce v Lady James Hay (1852) per Lord St Leonards
