Easements

Question 0

Hawkins v Rutter

Answer 0

Easements cannot exist in gross, they run with the land

Question 1

Re Ellenborough Park

Answer 1

Four essential characteristics of easements, which are subject to judicial discretion - 1. Must be dominant/servient tenement, 2. Separation of dominant and servient tenement, 3. The alleged easement must benefit the dominant tenement, 4. Must be capable of forming the subject matter of a grant

Question 2

Wright v Macadam

Answer 2

Tenements must not be owned AND occupied by the same persons, if this happens the easement is extinguished

Question 3

Canham v Fisk

Answer 3

If the d/s tenements come into the same occupation not ownership then the easement is suspended and can be revived later on

Question 4

Hill v Tupper

Answer 4

The easement must confer a benefit on the land in some way and must not be purely personal

Question 5

Re Aldred

Lawrence v Fen Tigers

Answer 5

Rights granted by easements must be sufficiently clear and certain - ‘a good view’ was insufficiently precise

Question 6

Browne v Flower

Answer 6

There is no easement to privacy

Question 7

Phipps v Pears

Answer 7

It is unlikely hat a court will uphold an easement requiring the ST to spend money or anything too burdensome – here it was to prevent him demolishing his premises

Question 8

Moncrieff v Jamieson

Answer 8

Easements should not create positive obligations, so, for example, a right to use a swimming pool could probably never qualify due to the maintenance

Question 9

Crow v Wood

Answer 9

Easement of fencing - exception to no positive obligation of easements

Question 10

Copeland v Greehalf

Answer 10

An easement is not a right of ownership and, if the DT wanted more control, they should have bargained for a lease

Question 11

Batchelor v Marlowe

Answer 11

The ‘reasonable use test’ as regards whether an easement can be allowed or not - questioned by L Scott in Moncrief but not overruled

Question 12

Walsh v Lonsdale

Answer 12

Forms of written contract that equity recognises cf s2 LPA 1989

Question 13

Ives v High

Answer 13

Oral agreements can only give rise to an easement if the actions amount to an estoppel

Question 14

Legal easements expressly created

Answer 14

Must be on the register against the ST ss25 and 27 and Sched 2 LRA 2002

Question 15

Chauhary v Yavuz

Answer 15

Para 3 Sched 3 of the LRA is limited to LEGAL easements, and it is very unlikely that under para 2 an equitable easement would be in ‘discoverable actual occupation’ of the ST - therefore, an equitable easement will only survive a transfer if it is entered on the register as an Agreed or Unilateral Notice against the ST

Question 16

CP Holdings v Dugdale

Answer 16

Express grant of an easement i.e. A grants B a right of way over A’s land

Question 17

Hillman v Rogers

Answer 17

Where A sells/leases part of his land to B and includes an easement, e.g. water pipes, then A will become ST and B DT

Where no easement would render land useless, the courts will usually imply one

Question 18

Re MRA Engineering

Answer 18

An implied grant of an easement must indeed be necessary, although when it is clearly so it will usually be implied

Question 19

Walby v Walby

Answer 19

The test of whether an easement should be implied is unconcerned with reasonable enjoyment - it is a strict test which will only succeed when the land cannot be used at all

Question 20

Re Dodd

Answer 20

Implied reservations are quite rare as the seller had it in his power to expressly reserve an easement and the courts therefore ‘lean against the seller’

Question 21

Davis v Bramwell

Answer 21

Implied grant by common intention - same as the other implied doctrines except that here it does not have to be necessary to use the land

Question 22

Wheeldon v Burrows

Answer 22

Implied grants (not reservations) for the purchaser which are implied from the context of the sale - i.e. rights in the nature of easements that the seller enjoyed and used prior to the transfer for the benefit of the part transferred

Question 23

Kent v Kavanagh

Answer 23

There must be common ownership of the land in its entirety prior to the W v B rule being triggered

Question 24

Millman v Ellis

Answer 24

The rule from Wheeldon v Burrows can be expressly excluded - but the exclusion must be clear and the express grant of a lesser easement does not impliedly exclude the grant of a wider easement

Question 25

Hansford v Jago

Wheeler v JJ Saunders

Answer 25

It is not clear whether ‘continuous and apparent’ and ‘necessary for the reasonable enjoyment’ are both needed - but continuous does not mean continuously used, just continually available and was in fact used before the sale
– appears that both must be satisfied

Question 26

Alford v Hannaford

Answer 26

The fact that an easement could have been used is insufficient under Wheeldon, it must have been being used prior to the sale

Question 27

Swansborough v Coventry

Answer 27

Wheeldon is available to double conveyance and doesn’t necessarily have to involved the common owner

Question 28

Campbell v Banks

Answer 28

s62 LPA conversion of those rights capable being turned into easements - must have been being used prior to sale

Question 29

Sovmots v Sec. of State for the Environment

Answer 29

It seems that under s62 the plots of land owned by the seller must have been in separate occupation (but not ownership)

Question 30

P & S Platt v Crouch (Peter Gibson LJ)

Answer 30

Prior diversity of occupation is not always needed under s62 – only look at prior diversity if not ‘continuous and apparent’

Question 31

Goldberg v Edwards

Answer 31

s62 is therefore obviously very potent, here a licence was converted into an easement - sellers need to be careful

Question 32

R Square Properties v Nissan Motors

distinguishing Bachelor v Marlow

Answer 32

New, recent case allowing an easement for the parking of 80 cars