Easements

Question 1

What is a positive easement?

Answer 1

A landowner going or making use of something in or on a neighbour’s land e.g. right of way.

Question 2

What is a negative easement?

Answer 2

Right to receive something from the land of another without obstruction.

Question 3

what is a tenement?

Answer 3

Piece of land (must be close together

Question 4

What is the dominant?

Answer 4

confers a benefit on land

Question 5

What is the servient?

Answer 5

imposes a burden on land

Question 6

What are examples of both positive and negative easements?

Answer 6

Positive:
Right to use the lavatory
Right to use a bin

Negative:
Right to support
Right to light

Question 7

What is the caveat empor?

Answer 7

“Let the buyer beware” - must know of any rights/easements

Question 8

WHat is a profit a prendre?

Answer 8

form of easement - take something natural from the land

Question 9

What are the basics for easements (semester one)?

Answer 9

Legal? s.1(2)(A) Yes, if they are perpetual or fixed.
Formalities (s.52 LPA) - by deed.
Registerable? s.27(d) LRA - must be registered on the title register.

Question 10

WHat are the four elements needed for someone to exist as an easement?

Answer 10

1. Must be a dominant and servient tenement
2. EAsement must accomodate the dominant tenement
3. Dominant and servient tenement must be owned by diffierent people
4. Must be capable of being granted

Question 11

Which case sets out the four essential elements (can it exist as an easement)?

Answer 11

Re Ellenborough Park

Question 12

What are the fact of Re Ellenborough Park?

Answer 12

Developer owned an estate with restrictive covenants, one being that no buildings should be constructed within a certain distance from the the land without consent.
The developer reserved a strip of land for his own use and enjoyment, intending to maintain it as an open space for the benefit of the homeowners.
Question: whether the homeowners had acquired a right of way over this strip of land by virtue of their purchases, despite there being no explicit grant in the conveyance documents.
Result: court ruled in favour of the homeowners, establishing a legal precedent known as the “Re Ellenborough Park” doctrine.

Question 13

what was the Re Ellensborough Park Doctrine

Answer 13

If a developer lays out a scheme of development and sells plots of land with the intention that certain amenities (such as open spaces or roads) will be enjoyed by the purchasers of those plots, then those purchasers may acquire easements over those amenities, even if not explicitly granted in the conveyance documents.

Question 14

What is the breakdown of ‘The easement must be capable of being granted’?

Answer 14

1. is there a capable grantor?
2. is there a capable grantee?
3. ‘certainty of description’ - can it be described and defined clearly?
4. is it a right recognised as being able to exist as an easement?

Question 15

What can be said about the first element ?

Answer 15

Fits into the first definition. Has to be about land (land which suffers and benefits). Allows the dominant owner to use the land of the servient owner.
Unlike a profit, can only exist pertinent (next to) a dominant tenement.
Two pieces of land.

Question 16

what should we ask when considering the second element?

Answer 16

Does it benefit the land or the person/business using the land?

Question 17

Provide an example for the second requirement?

Answer 17

advertising sign attached to servient premises. If it benefits a business carried on a that dominant land then it may be held to accommodate the land itself.

Question 18

Which case fulfils the second requirement

Answer 18

Moody v Steggles 1879 - public house owners claimed a right to place a sign up. Could still be an easement here even though it advertised a business because it made the DT a better and more convenient tenement - benefited the land

Question 19

Which case fails the second requirement?

Answer 19

Clapham v Edwards - general advertising - right to use a wall for advertising generally - wasn’t restricted to the business carried on by the DT - didn’t accomodate the DT and was merely a license. Doesn’t bind third parties and not capable of being legal.

Question 20

Extra cases for the second requirement?

Answer 20

Hill v Turper - merely a license
P&S Platt v Crouch - seen as a benefit here.

Question 21

What is the test for the second requirement?

Answer 21

The accommodation test - does it make the DT a better and more convenient tenement?

Question 22

What is an example given for the third element?

Answer 22

if parcel a and b are in the same ownership, using the path to access A from the roadway is a quasi-easement (because they are both owned by the same person).
If the owner sells B, the
quasi-easement may
become a full easement
and the owner of A may
have a right of way over B (because they are in separate ownership).

Question 23

Explain the requirements for the first stage of element 4?

Answer 23

Is there a capable grantor?
e.g. drawing water from a stream does not have a capable grantor. The river is owned by them, nobody can own water. Can grant an easement to lay a pipe/drainage instead

Question 24

What happens if someone is underage or mentally ill?

Answer 24

they cannot be a capable grantor

Question 25

Which case links to the requirement for a capable grantor?

Answer 25

Sweet v Sommer - servient tenement jointly owned by couple. Husband alone couldn’t grant a right of way to DT. Invalid because he tried to grant on his own.

Only holders of a legal estate of the servient tenement can grant an easement over it.

Question 26

what is the second requriement of the fourth element?

Answer 26

is there a capable grantee - must be someone whose land will be accommodated

Question 27

Provide and example for the second requirement of the fourth element?

Answer 27

A owns Pinkacre and grants a right of way to B who owns no nearby land which would benefit – cannot be an easement, can be a licence.w

Question 28

Who cannot be a capable grantee?

Answer 28

If you are underage or mentally unfit, you cannot be a capable grantee. Cannot give to a fluctuating body e.g. the inhabitants of a village (no defined group of people – could be a licence).

Question 29

What is certainty of description (provide two case examples)…

Answer 29

Can a right be clearly described and defined? Webb v Bird – no right to general flow of air – no, cannot be an easement. Case: windmill needs air, a building can stop this. Owner claimed this and the court said this was far too vague.
And, Bryant be Lefever - chimney didn’t have enough air - court rejected.

Question 30

Provide a case that shows certainty of description?

Answer 30

Cable v Bryant - timber merchant. Wood ahs to be ventilate to turn into greenwood. C said that they had a shed with ventilation in and the neighbour affected this by building right next to it. Court claimed that the right could exist because it was specific enough.

Question 31

Can the right be clearly defined if for recreational use?

Answer 31

Was not ruled out in Re Ellenborough park
Need to look at what the specific use is