Easements Flashcards
Framework for easement problem questions
- Is the right capable of being an easement?
- Has it been acquired as an easement?
- What is the effect of the easement on third parties?
Dyce v Lady James Hay (1852) 1 Macq. 305
‘The list of easements is not closed’
There are some easements which there are precedence for, if not, Re Ellenborough Park
*Re Ellenborough Park [1956] Ch 131
Defines the essential characteristics which a right must have before it is allowed to be an easement
FACTS:
- A park is surrounded by houses; do the people have an easement to have a right to walk on the park?
- Need to know due to a compensation scheme following WWII where they would get compensation if they hold a PROPERTY interest
- House purchasers were granted ‘the full enjoyment… at all times hereafter, in common with the other persons to whom such easements may be granted of the pleasure ground… Ellenborough Park… but subject to the payment of a fair and just proportion of the… expenses keeping [it] in good order and condition’
HELD:
- The owners of a house in EP had an easement to use the park
- TEST*:
1. There must be a dominant and servient tenement
2. The dominant and servient owners must be different persons
3. An easement must accommodate the dominant tenement
4. The right must be capable of forming the subject matter of a grant (must ‘lie in grant’)
ACCOMMODATE:
- Increased the value which cannot be wholly dismissed
- Question is of fact; depending on the nature of the alleged DT and the nature of the right granted
- Relevant that conveyance was residential and not commercial; specified it must be used as a pleasure park/garden as created a requisite connection between it and the house
- Analogous to having a garden
- Evershed MR did not support the cricket ticket analogy
- Applies to neighbouring but not adjacent houses; physical proximity was an important consideration
NOTES:
- Must accommodate the land: must be “reasonably necessary for the better enjoyment of that tenement”; adding value to the land does not make it an easement necessarily
- Right to use the park to accommodate the land; it was an extension of the normal use of the house
- Evershed MR: a right to watch cricket or visit the zoo would undoubtedly increase value but that there is no sufficient nexus between the enjoyment of that right and the enjoyment of a house (not everyone who came to the land would see the advantage in these benefits)
- Defining right: no jus spatiandi (right to wander); it is too vague
- Not joint ownership despite owner being restricted of any use of the garden
Woodman v Pwllbach Colliery [1914] 111 LT 169
Intended easements;
FACTS:
A owns a colliery and tried to claim that had an easement to allow coal dust and fumes to go across neighbouring land (nuisance in tort)
HELD:
- They could not work out exactly where the dust/fumes would go; will change depending on wind
- ST could not be properly defined
LORD PARKER:
The circumstances where an easement may be implied on the basis of intention are explained:
(1) Where the implication arises because the right in question in necessary for the enjoyment of some other right expressly granted (the implication in the present case does not fall under this principle)
(2) An easement which depends upon the circumstances under which the grant was made, where it is necessary to enable the DO to use the land for the purpose for which it was sold or leased: the law will imply a grant or reservation where it will be necessary to give effect to the common intention of the parties N.B. It is essential that they intend the land to be used in some definite or particular manner
Law Com, ‘Making Land Work’ (2011)
Want to get right of DO/SO being different persons; it is an unnecessary limit.
People may own land, set up and sell off in two parts…
Technical difficulties if beneficiary in one and legal owner in another, not clear.
Car parking;
Think that even if SO can’t make any reasonable use of the land that it should not stop a right from being an easement
Reform;
- Rid of the present law on implication of easements with a single statutory test
- Suggested it is not workable in practice
- It will imply an easement as a term of disposition where it is necessary for the reasonable enjoyment of the land at that date; bearing in mind use, relevant physical features of SL, intentions for use of land known to both parties at the time of grant, available routes for the easement, potential interference with SL/inconvenience to SO
- Also do not want to turn precarious benefits into legal easements
Prescription;
- Want to replace with statutory scheme; 20 years continuous qualifying use (lost modern grant) without force, stealth and permission
Hill v Tupper (1863) 2 H&C 121
FACTS:
- H had land beside the canal and was granted an exclusive right to put pleasure boats on the canal
- T owned a pub on the side and wanted to challenge the monopoly and put his own boats on the land
- H claimed it was an easement wanting to prevent T
HELD:
- Exclusive right to hire out pleasure boats on a canal is not in connection with the use and enjoyment of Hill’s land
- It could be a licence/contract
- Too commercial and too little concern with his actual land, would not be useful for everybody who used that land
Moody v Steggles [1879] 12 Ch 261
FACTS:
- Claimed an easement to display a pub sign (affixed to neighboring house on high street) as had done so for 40 years
HELD:
- An easement, even though commercial: in this case it was sufficiently connected with the land (DT) to be an easement
- Not much discussion in the report behind rationale
FOX J:
- An easement can only be used for the purpose of the occupation, not just the individual person advantage
ACADEMIC OPINION:
- Anyone who later bought the land would use it as a pub which would require advertising as the pub was not easily seen from the high street
Copeland v Greenhalf [1952] Ch 488
Right to use land for business/exclusivity of land;
FACTS:
- G ran a business making wheels and repairing cars
- Used C’s land to store things
- The land was C’s access route to their orchard
HELD:
- Storing for business is a potential easement; but not if it is too exclusive
- Upjohn J: amounted to a claim to joint use of the land by D, or exclusive user
- Copeland should have claimed a lease or an occupational lience
Clapman v Edwards [1938] 2 All ER 507
A right to advertise on ST was not granted as it was not specifically to advertise the business of DT; therefore no sufficient connection with the land
Bailey v Stephens (1862) 12 CB
Grant to owner of land in Kent of a right of way over land in Northumbria would not create an easement; ridiculous idea
Todrick v Western National Ombinbus [1934] Ch 568
Intervening land is not fatal, if the DT is accommodated in fact; in this case a separating strip of land was not fatal
Harris v Flower (1904) 74 LJ Ch 127
TEST:
If you have a right of way you can use to get to DT and only use to get to DT; logically cannot use to get beyond land as only attached to right of DT.
A right of way can’t be used to get across the ST to go through and beyond the DT to another piece of property owned by the DO.
N.B. Particular issue for developers
The Law Com do not like this rule
The right must be capable of forming the subejct matter of a grant
- There must be a capable grantor and grantee
- The right needs to be well defined
- The right must not be too exclusive of the SO
- Particular restrictions for negative easements
William Alfred’s Case (1610) 9 Co. Rep. 57b.
Concerns defining of right;
‘Easement of prospect’ e.g. a right to view not allowed
Objected to a pig sty being built; couldn’t on the grounds that it disrupted nice view
Brown v Plomer [1911] 1 Ch 219
Concerns defining of right;
‘Easement of privacy’; idea that you will not be overlooked
‘Airflow’ cases
Concerns defining of right;
Not general airflow, but flow through defined air channel allowed… e.g. windmill and chimney needing supply
Reilly Booth (1890) 44 Ch D 12
Concerns defining of right;
LOPES LJ:
“There is no easement known to law which gives exclusive and unrestricted use of a piece of land”; this would be claiming a fee simple/lease
Wright v Macadam [1949] 2 KB
Right to use coal shed;
- DO allowed to use coal shed on ST to store coal
- B doing so they are essentially stopping SO from using that shed
- It was not raised that it was too exclusive
- Did come before EP so is a questionable decision
- Right of storage in principle accepted
Application of s.62;
- Was originally a licence to store coal; became a conveyance under s.62 so the right was an easement
Jenkins J;
- The Act is not confined to rights that where annexed to the property at the time of conveyance as to make them legally enforceable rigts
- Affirms Int. Tea Stores that a right enjoyed by mere permission is enough
- “For the purposes of s.62, it is only necessary that the right should be one capable of being granted at law
- May be an exception if the right is only intended to be temporary
- The right to use the shed for the purpose of storing coal is required for the domestic purposes of the flat; this is an easement recognised by law, and this is the kind of right which can be readily included in a lease or conveyance by the insertion of appropriate words
- Not time limit was set to the time for which the coal shed could be used, she simply gave permission
Miller v Emcer Products Ltd [1956] Ch 304
Right to use lavatory;
FACTS:
- An office block where the people on one floor go to the toilet on another floor
- Argument that going to the toilet excludes other from going to the toilet
HELD:
- It was de minimis (not important); you would not expect to be using the toilet all the time so does not exclude the ST unduly
Grisby v Melville [1972] 1 WLR 1355
Exclusivity of land;
FACTS:
- M claimed easement of storage in G’s cellar
HELD:
- A storage easement here does not work as it is too exclusive; using the whole cellar of ST
- Brightman J: the claim would give, to all intents and purposes, an exclusive right of user over the whole of the cellar
Hanina v Morland (2000) 97 (47) LSG 41
Exclusivity of land;
Use of a flat roof by tenant of an upper floor maisonette as an extension of her home was too exclusive
Platt v Crouch [2003] EWCA Civ 1110
Exclusivity of land;
The right to moor boats, erect signs and fish along a section of the riverbank not exclusive as it would not deprive the SO of any reasonable use of the land
Newman v Jones (1982) cited in [1994] 1 EGLR 70
Car parking;
MEGARRY J:
Right for a landowner to park a car anywhere in a defined area near DT could be an easement; it is a possibility but people are beginning to think this is problematic and could be too exclusive of the ST
London and Blenheim Estates v Ladbroke Retail Parks Ltd [1992] WLR 1278
Car parking;
PAUL BAKER QC:
- If a right would leave SO without any reasonable use of this land, whether for parking or anything else, it could not be an easement…
- Are you excluding the SO too much?
- The right to park/store is one of degree
DT and ST;
- The additional land that the DT wanted to buy was not sufficiently clearly identified to be regarded as part of the DT; there was therefore no easement for users of that land to part on the SL
PETER GIBSON LJ:
- Policy goes against encumbering land with burdens of an uncertain extent
- Fox LJ in Asburn v Arnold: certainty is of prime importance regarding title of land
Batchelor v Marlow [2000] EWCA Civ 1051
Car parking/’ouster’ principle;
FACTS:
- Land could only hold 6 cars
- Right to park 6 cars wanted; effectively exclusivity
HELD:
- Not an easement; stops anybody else from using it
- It is too exclusive
- Right during working day
TEST:
- Would the owner have any reasonable use of the land if this was allowed as an easement - which makes the ownership illusory?
Moncrieff v Jamieson [2007] UKHL 42
Car parking;
HELD:
(Technically obiter as appeal from Scottish case; but influential)
- Moving away from reasonable use towards: do I have possession and control of the land? (lower threshold)
- Right to park cars in principle accepted
LORD SCOTT:
- Preferred test NOT ‘does SO retain any reasonable use of land’ BUT ‘does the SO retain possession and control of the ST?’
LORD NEUBERGER:
- More reserved in accepting test; too dangerous to decide on a test given limited arguments they have received
- Cautious as how is parking different than any other storage space
- Thinks can have an easement with exclusive occupation
Virdi v Chana [2008] EWHC 2901 (Ch)
Car parking;
- Car parking in a singe space
- Courts very keen to allow parking easements
- Batchelor test “nodded to” but passed much more easily since Moncreiff
- Batchelor acknowledge but distinguished
- Ownership not illusionary as SO could plant a tree, maintain a fence, or put “decorative flowerpots” on a piece of land on their land
More cases have allowed parking easements: Kettel v Bloomfold (2012) and R Square properties v Nissan Motors (2014)
Begley v Taylor [2014] EWHC 1180
Paving over a looking more like a patio created possession and control
Principles:
- Where parking rights deprive the owner of practical use of his land, no easement can arise
- If the owner retains the right to resurface the land in question, in order to create an aesthetic benefit to his adjoining land, some practical benefit will have been resumed
- Partial obstruction of a right of way will be actionable if it renders the use more inconvenient, even where it remains possible to use the right
Phipps v Pears [1965] 1 QB 76
Negative easements;
No easement of protection of a house from the weather by an adjacent house; therefore DO could not object to SO demolishing their house
Negative easements should be looked at with caution; such an easement being permitted would unduly restrict the neighbour’s right to enjoy their land and would hamper legitimate development
LORD DENNING:
“Every man is entitled to pull down his house if he likes. If it exposes your house to the weather, that is your misfortune…”
The law is weary of creating new negative easements as they are so limiting and burdensome for ST
Legal Easements
Easements can be legal or equitable; legal binds 3rd parties to a great extent than equitable; must be granted in fee simple/years absolute: s.1(2)(a) LPA 1925
Express easements need a deed: s.52 LPA 1925
Must be completed by registration: s.27(2)(d) and s.27(1) LRA 2002
Express creation of equitable will need to meet requirements of s.53(1)(a) LPA 1925 or LP(MP)A 1989
Rudd v Bowles [1912] 2 Ch 60
Easement of necessity;
FACTS:
- Strip of land implied to be part of lease
- Except through the houses themselves, there was no other means of access to the gardens and each garden had a gate opening into the strip
HELD:
- Each lease contained implied grant of a right of way over the strip because an intent to grant such a right must necessarily be inferred
- Even though there were other ways into the garden, the other evidence of intention meant that they could succeed in establishing an easement
Nickerson v Barraclough [1981] Ch 426 1973
Easements of necessity;
FACTS:
- Expressly granted NO easement at time of grant
- Land became landlocked
HELD:
- No necessity
- Rebutted argument on policy that land should not be deprived of a suitable means of access; this is as doctrine founded on an implication from the circumstances not public policy
- Critical date is the time of conveyance; any necessity arising later will have to be negotiated and paid for
Manjang v Drammeh (1991) 61 P & CR (PC)
Easements of necessity;
X could not have an easement of necessity over Y’s land to get to and from his business premises from the nearest street because he could get to them by using the river as many people did… although more inconvenient, still possible
When only necessary i.e. no intention it must be REALLY necessary
Can only be implied where the land cannot otherwise be used at all: likely only to be to provide access
Lord Oliver;
The requirements for implying easements of necessity:
1. First a common owner of a legal estate in two plots of land must be found
2. Then access between one of those plots and the public highway must be shown to only be obtained over the other plot
3. Finally there has to be found a disposition of one of the plots without any specific grant or reservation of a right access
Following this a reservation of an easement may be granted
Human rights;
Does this bind a third party capable of a claim under Art 1 of the First Protocol of the European Convention of Human Rights?
Wong v Beaumont [1965] 1 QB 173
Easements of necessity because of contemplated user;
W bought seller premises underneath a building to be used as a restaurant; it was always contemplated it would be used in this way; it became the law that to run a restaurant certain ventilation was required so W wanted to build this; successfully claimed right to build ventilation duct on B’s land due to the contemplated use at the time of the grant; easement of necessity
Donovan v Rana and another [2014] 1 P&CR 18 (CA)
Easements of necessity because of contemplated user;
FACTS:
- D buys some land at auction; it was sold as building spot in residential area where a right of way is granted over a piece of land retained by the seller
- Arranged they would build house
- No access to mains, water, electricity… so would need to under the access strip and gain access to these
HELD:
- There is an easement; there is an implication of easement to lay and connect to main services which is necessary to give effect to the common intention of the parties to the transfer
- Not about what is reasonable or desirable
N.B. “context is everything” (Stack v Dowden) so if farm house, for example, may not need such connections
Wheeldon v Burrows (1879) 12 Ch 31
KEY TEST:
“On the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee of those continuous and apparent easements (by which of course I mean quasi-easements) or, in other words all those easements which are necessary to the reasonable enjoyment of the property granted and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted…” Thesiger LJ
Concerned with reservation of right when splitting land. Courts are not generous. Right to light not granted.
Before the severance the rights did not exist as easements but quasi-easements.
The rule is based on the intentions of the parties.
The rule only applies on the grant of easements, or where sale of the DL and SL are simultaneous (Schwann v Cotton).
It does not operate to imply a reservation
N.B. not clear if ‘continuous and apparent’ and ‘necessary to the reasonable enjoyment’ are alternatives or both required… majority view is that both are required, some suggestions they are synonymous
Millman v Ellis (1995) 71 P & CR 158
Application of W v B;
FACTS:
- M owns land with is then subdivided; there is express conveyance of right of way and layby
- Argument that they ought to have access to another bit of land to make getting their car out safer
HELD:
- Entitled to a right of way over the remainder of the layby under the rule in W v B
- Use of all the layby was continuous and apparent and was necessary for the reasonable and convenient enjoyment of the DT because use of the express grant was dangerous (although not impossible)
- Less stringent test than necessity
Wheeler v Saunders [1995] 2 All ER 697
Application of W v B;
FACTS:
- Nasty neighbour dispute; W bought a farmhouse from S with plan to help farm pigs; his wife was going to run holiday cottages on W’s land
- The parties fall out
- Nuisance claim as S brings in more pigs than planned to and it smells
- Easement point about access roads
- Prior to land being split up there were two access points, W wanted to access both, access still available from minor road
HELD:
- No implied grant under the rule in W v B
- No easement because the right claimed was not necessary to the reasonable enjoyment of the land… assumed both necessity and continuous and apparent tests where required
S.62 LPA 1925
Creates easements where at the time of conveyance a right is enjoyed… has been interpreted as giving rise to new legal easements
There must be a creation or transfer of legal right by deed
‘Prior diversity’ for s.62
Some case law says no (P&S Platt v Crouch) some says yes (Long v Gowlett)…
S.62 & W v B
- W v B only concerns easements; s.62 includes other rights
- ‘Prior diversity’ arguable necessary for s.62; not for W v B
- Restrictions on the type of easement that can pass under W v B, but not under s.62
- S.62 limited to legal conveyances; but W v B can apply to equitable transfers
Prescription
- Must be a LEGAL easement
- Must be as of right; nec vi nec clam nec precario (artificial?)
- Must be acquired by fee simple owner v fee simple owner
- Use must be continuous (this varies between three methods)
Common law prescription
Since time immemorial (1189): Coke on Littleton
If there has ever been common ownership since time immemorial then it will not apply
Lost modern grant
- Presumed that a grant has been made and lost in modern times if the easement has been enjoyed for 20 years…
- Recognised that is is a legal fiction (commentators do not find it rational)
- Evidence that it did not exist more than 20 years ago is not fatal (Penwarden v Ching (1829) Moo. & Mal)
Prescription Act 1832
- “A statute which has not only failed in effecting its particular object, but has introduced greater doubt and confusion than existed before its enactment” Gale, 1839
- In its defense: was the year of the Great Reform Act so was probably not a Parliamentary priority
- Does not abolish other methods
Mills v Silver [1991] 2 WLR 324 (CA)
Prescription;
FACTS:
- D bought a farm (DT)
- Only vehicular access across a track over P’s farmland (ST)
- The previous owner of DT had used this openly though infrequently for 60 years but not with a motor vehicle, but did take a horse and cart through
- No express permission given but not prevented
HELD:
- Lost modern grant allowed, sufficient use was shown even if occasional
- Toleration not relevant as long as they had not been given permission
- They where not permitted to improve track (tarmac to be road, had to pay damages) although allowed to use
London Tara Hotel v Kensington Close Hotel Ltd [2011] EWCA Civ 1356
Prescription;
FACTS:
- Two hotels in London; one hotel grants another a licence to use right of way (not an easement at this stage)
- An attempt to claim prescription would not be an easement as there is permission
- However DT reorganised, so previously granted licence didn’t count anymore, new identity
HELD:
- Easement by prescription
Dutta v Hayes [2012] EWHC 1727
If there is an express easement it will generally be construed as for all purposes, unless some clear restriction appears in the words of the grant itself; in this case stud farm not allowed when express easement for agricultural use
White v Grand Hotel [1913] 1 Ch. 113
Express grant;
Single private dwelling could be used as a hotel; the right can be used for any lawful purpose not just the one that was actually in use at the date of the grant; the lane use was expected to be intensified which would increase the burden on the ST but still granted easement
Todrick v Western National Omnibus Co Ltd [1934] 1 Ch 190
Express grant;
Right of way was granted for a lane for cars; the use could not be changed to a bus garage as the ST had to be altered to allow buses to cross
BR Board v Glass [1965] Ch 538
Express grant;
Increased use of caravan sight from 6 to 29 caravans not excessive to incur excessive user block
Jelbert v Davis [1968] 1 WLR 589
Express grant;
Proposed changed of use of farm land to allow 200 or more caravans on it was excessive (but this was a Denning case)
Denning test: does it go beyond what is reasonably contemplated at the time of the grant (this is an extension of the what it says in the grant test)
Dewatt v Lewis [2010] EWCA Civ 1382
Implied grant;
DT had a right of way which had been used by cars and tractors; held there was no right to drive cattle across the land as it radically changed the use
McAdams Homes Ltd v Robinson [2005] 1 P & CR 520, Neuberger LJ
Easement of drainage; use of DT changed from small bakery into 2, 4 bedroom houses meaning the use of the sewers would be much bigger causing problems; ST not happy about this; DT could not rely on original drainage agreement as increase in intensity not allowed
RULES:
- SO can’t object to increase intensity of user.
- Change of use of DT does not necessarily effect things.
- SO can only object to a ‘radical change’ in character or change in identity of DT, resulting in a substantial increase or alteration in burden on servient land
CRITIQUE:
- Both questions could create an uncertain outcome in many circumstances
- But this is necessary as each case will turn upon its own facts (regarding a particular easement, position of the ground at the date of grant, the surrounding circumstances at the date of the grant, and the nature and effect of the redevelopment that has subsequently taken place)
Implied easements
Take the nature of the underlying transaction
Benn v Hardinge (1992) 60 P&CR 246
175 years of no use was not enough time to extinguish an easement for abandonment (CA)
Note in Australian case of Treweeke the right of way was not abandoned, despite being impenetrable, as there lack of use was justified in them using another access route to the beech
Dwyer v Westminster City Council [2014] EWCA Civ 153
DT used for various purposes; conveyed right of way; council erected 5 blocks of flats on land; very high ones joined with passageways which were never used so Dwyer uses it for storage for over 40 years; put up locked gates and made into an entirely enclosed storage; he wanted possessory title and argued that noone ever used it or had reason to use it the entire time it had existed; no abandonment, he had to remove his storage; even though the council had no interest in it, they had not lost the right
Das v Linden Mews Ltd [2002] EWCA Civ 590
Rule in Harris v Flower;
Successfully prevented using right of way on road to reach newly acquired parking spaces for residences of houses which where the DT
Peacock v Custins [2002] 1 WLR 1815, CA
The court is not concerned with only using the easement occasionally (in this case right of way) if it is not intended for that purpose
Wall v Collins [2007] EWCA Civ 444
Cannot grant a right of way greater than your interest in the proper; so leaseholder cannot grant right of way to freehold
The certainty of scope of a grant
No uninterrupted right to light or air (Harris v De Pinna); no right to view (Ibid 262); no right to uninterrupted television reception (Hunter v Canary Wharf); no right to make noise (Lawrence v Fen Tigers); distinction between right to use communal garden and right to wander at will over large and ill-defined area (Re Ellenborough Park)
No positive burden on the servient owner
Not required to keep in good repair (Duke of Westminster v Guild); continuous supply of water not required but cannot block it (Schwann v Cotton); must maintain boundary fence (Jones v Prince) which stems from ancient obligation due to cattle
MRA Engineering v Trimster (1988) 56 P & CR 1
Easements of necessity;
The scope of the right is limited to what is essential to the use of the DL… vehicular access will not be necessary where pedestrian access is adequate
N.B. at the date of disposal (Corp of London v Riggs)
Nickerson v Barraclough [1981] Ch 426, CA
Easements of necessity;
Brightman J:
The basis lies in intention and not public policy
Consequences if the intention basis;
- A contrary intention will rebut the easement of necessity
- Easements of necessity will not arise when the land has been acquired by AP or compulsory purchase (where there is no agreement from which to derive any intention)
- Need for common ownership of the DL and SL
- State date for assessment at the date of severence
Bradbrook, ‘Access to Landlocked Land: A Comparative Study of Legal Solutions’ (1983)
Easements of necessity;
Argues that any intention of the parties is purely fictional, and that public policy is more attractive
- The development of easements of necessity has proceeded on an ad hoc basis rather than as a result of a coordinated response to a social problem
- The courts have not attempted to resolve a practical problem but have instead focused on maintaining the “purity”of easements of necessity
- Changing the basis to public policy could:
> Remove the limitations on the scope of easements
> It would be contrary to the CA decision in Nickerson v Barraclough but would not be “revolutionary” as many of the earlier cases base their decisions on public policy
- The intention based approach began in the 19th century where all legal transactions were treated as if they were based on contracts
Stafford v Lee (1993) 63 & CR 172
Implied easements;
FACTS:
Mrs Lee wanted to build a house in a woodland area; no express grant of a right of way had been given through the private drive there; she claimed it had been implied on the basis that it was the intention of the parties to the 1955 conveyance that a house would be built in the woodland
JUDGMENT:
Nourse J
- Intended easements (like all implied easements) are subject to the general rule that the are implied more readily in favour of a grantee than a grantor
- They must intend that the subject of the grant is to be used in a specific, defined manner (common intention of particular use)
- Once the requisite intention has been established, the law will then imply the grant of the easement as may be necessary to give effect to this intention (show that the easement is necessary to give effect to it)
- In this case the second step is not a problem but establishing the first is
- The intention does not need to be proved as a certainty just on the balance of probabilities
- The court considered that P’s home was very far from the woodland and other surrounding plots of land had been used to build dwellings
- On the balance of probabilities it was intended that it should be used for residential purposes, and he cannot see what other intention could reasonably be imputed to them
Re Webb’s Lease [1951] Ch 808, CA
Third category of implied easement based on Pwllbach;
FACTS:
For many years the tenant of the upper floors (sublet above butchers) raised no objection to an advertisement, but he then demanded payment for them to be retained
JUDGMENT:
Jenkins J
There are some exceptions to the rule that you need to gran express easements; necessity and mutual easements are not an exhaustive list; the circumstances of a particular case may be such as to establish a necessary inference that the common intention of the parties must have been to reserve some easement to the grantor; in this case there was no necessary inference as it was not sufficient that the tenant knew and had raised no objection to the advertisement
Ward v Kirkland [1967] Ch 194, HC
The rule in Wheeldon v Burrows;
FACTS:
The only practical way to maintain the walls of the cottage was via the farm; previously owned by a common owner; the walls had been maintained for some time in this way
JUDGMENT:
Ungoed-Thomas J
- There certainly has been continuous user, as whenever the need arose the right has been exercised
- The issue with apparent is as there is no feature on the SL that warrants the easement; there is clearly only possible for the cottage owners to maintain the wall from Kirkland’s land but this is not an apparent feature of the SL
Thompson ‘Paths and Pigs’ (1995)
The rule in Wheeldon v Burrows;
- Necessity (for the reasonable enjoyment of the land) is a significantly wider test in this context, and this uncertainty is not good
- There should be a test that calls for the right to be capable of being an easement by accommodating the DL
- The test is somewhere between necessity and accommodating the DT: it is an ill-defined point in between; it makes it difficult to predict when a quasi-easement might be a full easement under the rule
Gardener ‘An Introduction to Land Law’ (2009)
The rule in Wheeldon v Burrows;
- The rule in W v B creates an easement by umputing an intention to confer it
- Imputing must be supported by other arguments, such as previously actin in the same way as the rights of quasi-easement seek to grant
- It also must be positively needed (necessary for the reasonable enjoyment of the land) - the majority of commentators agree this is essential
International Tea Stores Co [1903] 2 Ch 165
The rule in Wheeldon v Burrows;
FACTS:
- H let C use a private road by permission to the adjoined show (let by H to C)
JUDGMENT:
Farwell J
- The right had become an easement by virtue of the implied general words
- He rejected as immaterial the fact that the privilege was enjoyed merely by permission, it was only significant that they had used the word “you do not consider the question of title to use, but the question of fact of user”
- You must take into consideration all the circumstances of the case
Tee ‘Metamorphoses and Section 62 of the LPA 1925’ (1998)
The rule in Wheeldon v Burrows;
“The metamorphosis from personal to property right” has been subject to widespread academic and judicial criticism:
- The word right is being used in two different meanings, to illogical effect
- The right not to be sued in trespass before the permission is evoked is very different that the right to an easement to store coal
- Creating an easement from an informal right or privilege
Kent v Kavanagh [2006] EWCA Civ 162
The rule in Wheeldon v Burrows;
It cannot operate to create an implied reservation where the SL is sold or leased
Differences between s.62 LPA 1925 and W v B
- S.62 requires a conveyance by deed to create/transfer a legal estate, but W v B may operate upon the creation/transfer of an equitable interest;
- S.62 operates only where there is diversity of occupation of the dominant and servient land, where as W v B operates only where there has been common ownership and occupation of the dominant and servient land
- The nature of the rights that are capable of passing as easements under s.62 are wider than those that can pass under W v B
- In W v M the court failed to consider whether rights to store ousted the SO
Celsteel Ltd; ChD 1985
Equitable easements can take an overriding interest, provided that they were openly enjoyed
LRA 2002, Sch.3 para.3
- An implied or presumed legal easement created after will only bind a purchaser of the SL if the purchaser knew, or should have known from a reasonably careful inspection of the SL, of the easement, or the easement had been exercised by the DO in the year preceding the sale
- Otherwise they will not bind the purchaser for the value
- They should apply to have an easement registered
MacFarlane ‘The Structure of Property’ (2008)
- The concept of abandonment is very problematic
- You cannot dispose of a property right, you must give it to another, so better view as proprietary estoppel
Dixon ‘Editor’s Notebook’ (2013)
The Law Com:
- A detailed an comprehensive analysis
- Find the law unfit in the 21st century: inconsistent and unpredictable
- Aim to make the law as clear, straightforward and as uncontroversial as possible
- Their proposals are more about rationalisation and simplification than fundamentally changing the law
The law of prescription and implication:
- Cause expensive and distressing cases (“by the barrell load”)
- Complex and confusing to practitioners
- Some form is desirable: facilitate effective land use; need more clarity and certainty; useful safeguard
- Entrenching the current scheme in legislation would not solve the problem
- New, single statutory scheme based on the “necessary and reasonable use of the land” bearing in mind:
> The use of the land at the time of the grant
> The presence on the SL of any relevant physical features
> Any intention of the future use of the land, known to both parties at the time of the grant
> So far as relevant, the available routes for the easement sought
> The potential interference with the SL or inconvenience to the SO
- No change in the ability to opt out of easements
- Does not propose the abolition of prescription: PE cannot cover as concerns an equitable right and not a legal right
- Proposed law: less complex technicalities; no need to litigate (seems to out against the philosophy of the LRA 2002
Specific easement recommendation:
- Seek to settle parking issues by proposing that the “right to use another’s land in a way that prevents that other from making any reasonable use of it will not for that reason fail to be an easement
- Abolish the ouster principle
- Rebuttle presumption: an easement which has not been used for 20 years should be regarded as abandoned
- Object to the decision in Wall v Collins reverting the position that there’s an easement on a lease is extinguished by merger with freehold
