Easements

Question 1

Framework for easement problem questions

Answer 1

1. Is the right capable of being an easement?
2. Has it been acquired as an easement?
3. What is the effect of the easement on third parties?

Question 2

Dyce v Lady James Hay (1852) 1 Macq. 305

Answer 2

‘The list of easements is not closed’

There are some easements which there are precedence for, if not, Re Ellenborough Park

Question 3

*Re Ellenborough Park [1956] Ch 131

Answer 3

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

Question 4

Woodman v Pwllbach Colliery [1914] 111 LT 169

Answer 4

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

Question 5

Law Com, ‘Making Land Work’ (2011)

Answer 5

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

Question 6

Hill v Tupper (1863) 2 H&C 121

Answer 6

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

Question 7

Moody v Steggles [1879] 12 Ch 261

Answer 7

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

Question 8

Copeland v Greenhalf [1952] Ch 488

Answer 8

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

Question 9

Clapman v Edwards [1938] 2 All ER 507

Answer 9

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

Question 10

Bailey v Stephens (1862) 12 CB

Answer 10

Grant to owner of land in Kent of a right of way over land in Northumbria would not create an easement; ridiculous idea

Question 11

Todrick v Western National Ombinbus [1934] Ch 568

Answer 11

Intervening land is not fatal, if the DT is accommodated in fact; in this case a separating strip of land was not fatal

Question 12

Harris v Flower (1904) 74 LJ Ch 127

Answer 12

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

Question 13

The right must be capable of forming the subejct matter of a grant

Answer 13

• 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

Question 14

William Alfred’s Case (1610) 9 Co. Rep. 57b.

Answer 14

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

Question 15

Brown v Plomer [1911] 1 Ch 219

Answer 15

Concerns defining of right;

‘Easement of privacy’; idea that you will not be overlooked

Question 16

‘Airflow’ cases

Answer 16

Concerns defining of right;

Not general airflow, but flow through defined air channel allowed… e.g. windmill and chimney needing supply

Question 17

Reilly Booth (1890) 44 Ch D 12

Answer 17

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

Question 18

Wright v Macadam [1949] 2 KB

Answer 18

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

Question 19

Miller v Emcer Products Ltd [1956] Ch 304

Answer 19

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

Question 20

Grisby v Melville [1972] 1 WLR 1355

Answer 20

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

Question 21

Hanina v Morland (2000) 97 (47) LSG 41

Answer 21

Exclusivity of land;

Use of a flat roof by tenant of an upper floor maisonette as an extension of her home was too exclusive

Question 22

Platt v Crouch [2003] EWCA Civ 1110

Answer 22

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

Question 23

Newman v Jones (1982) cited in [1994] 1 EGLR 70

Answer 23

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

Question 24

London and Blenheim Estates v Ladbroke Retail Parks Ltd [1992] WLR 1278

Answer 24

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

Question 25

Batchelor v Marlow [2000] EWCA Civ 1051

Answer 25

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?

Question 26

Moncrieff v Jamieson [2007] UKHL 42

Answer 26

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

Question 27

Virdi v Chana [2008] EWHC 2901 (Ch)

Answer 27

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)

Question 28

Begley v Taylor [2014] EWHC 1180

Answer 28

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

Question 29

Phipps v Pears [1965] 1 QB 76

Answer 29

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

Question 30

Legal Easements

Answer 30

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

Question 31

Rudd v Bowles [1912] 2 Ch 60

Answer 31

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

Question 32

Nickerson v Barraclough [1981] Ch 426 1973

Answer 32

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

Question 33

Manjang v Drammeh (1991) 61 P & CR (PC)

Answer 33

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?

Question 34

Wong v Beaumont [1965] 1 QB 173

Answer 34

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

Question 35

Donovan v Rana and another [2014] 1 P&CR 18 (CA)

Answer 35

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

Question 36

Wheeldon v Burrows (1879) 12 Ch 31

Answer 36

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

Question 37

Millman v Ellis (1995) 71 P & CR 158

Answer 37

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

Question 38

Wheeler v Saunders [1995] 2 All ER 697

Answer 38

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

Question 39

S.62 LPA 1925

Answer 39

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

Question 40

‘Prior diversity’ for s.62

Answer 40

Some case law says no (P&S Platt v Crouch) some says yes (Long v Gowlett)…

Question 41

S.62 & W v B

Answer 41

• 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

Question 42

Prescription

Answer 42

• 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)

Question 43

Common law prescription

Answer 43

Since time immemorial (1189): Coke on Littleton

If there has ever been common ownership since time immemorial then it will not apply

Question 44

Lost modern grant

Answer 44

• 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)

Question 45

Prescription Act 1832

Answer 45

• “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

Question 46

Mills v Silver [1991] 2 WLR 324 (CA)

Answer 46

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

Question 47

London Tara Hotel v Kensington Close Hotel Ltd [2011] EWCA Civ 1356

Answer 47

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

Question 48

Dutta v Hayes [2012] EWHC 1727

Answer 48

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

Question 49

White v Grand Hotel [1913] 1 Ch. 113

Answer 49

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

Question 50

Todrick v Western National Omnibus Co Ltd [1934] 1 Ch 190

Answer 50

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

Question 51

BR Board v Glass [1965] Ch 538

Answer 51

Express grant;

Increased use of caravan sight from 6 to 29 caravans not excessive to incur excessive user block

Question 52

Jelbert v Davis [1968] 1 WLR 589

Answer 52

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)

Question 53

Dewatt v Lewis [2010] EWCA Civ 1382

Answer 53

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

Question 54

McAdams Homes Ltd v Robinson [2005] 1 P & CR 520, Neuberger LJ

Answer 54

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:

1. SO can’t object to increase intensity of user.
2. Change of use of DT does not necessarily effect things.
3. 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)

Question 55

Implied easements

Answer 55

Take the nature of the underlying transaction

Question 56

Benn v Hardinge (1992) 60 P&CR 246

Answer 56

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

Question 57

Dwyer v Westminster City Council [2014] EWCA Civ 153

Answer 57

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

Question 58

Das v Linden Mews Ltd [2002] EWCA Civ 590

Answer 58

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

Question 59

Peacock v Custins [2002] 1 WLR 1815, CA

Answer 59

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

Question 60

Wall v Collins [2007] EWCA Civ 444

Answer 60

Cannot grant a right of way greater than your interest in the proper; so leaseholder cannot grant right of way to freehold

Question 61

The certainty of scope of a grant

Answer 61

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)

Question 62

No positive burden on the servient owner

Answer 62

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

Question 63

MRA Engineering v Trimster (1988) 56 P & CR 1

Answer 63

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)

Question 64

Nickerson v Barraclough [1981] Ch 426, CA

Answer 64

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

Question 65

Bradbrook, ‘Access to Landlocked Land: A Comparative Study of Legal Solutions’ (1983)

Answer 65

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

Question 66

Stafford v Lee (1993) 63 & CR 172

Answer 66

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

Question 67

Re Webb’s Lease [1951] Ch 808, CA

Answer 67

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

Question 68

Ward v Kirkland [1967] Ch 194, HC

Answer 68

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

Question 69

Thompson ‘Paths and Pigs’ (1995)

Answer 69

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

Question 70

Gardener ‘An Introduction to Land Law’ (2009)

Answer 70

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

Question 71

International Tea Stores Co [1903] 2 Ch 165

Answer 71

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

Question 72

Tee ‘Metamorphoses and Section 62 of the LPA 1925’ (1998)

Answer 72

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

Question 73

Kent v Kavanagh [2006] EWCA Civ 162

Answer 73

The rule in Wheeldon v Burrows;

It cannot operate to create an implied reservation where the SL is sold or leased

Question 74

Differences between s.62 LPA 1925 and W v B

Answer 74

• 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

Question 75

Celsteel Ltd; ChD 1985

Answer 75

Equitable easements can take an overriding interest, provided that they were openly enjoyed

Question 76

LRA 2002, Sch.3 para.3

Answer 76

• 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

Question 77

MacFarlane ‘The Structure of Property’ (2008)

Answer 77

• 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

Question 78

Dixon ‘Editor’s Notebook’ (2013)

Answer 78

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