Easements

Question 1

Wall v Collins

Answer 1

Adjoining houses were held on 999 years lease. The dominant land enjoyed a right of way for a term of 999 years. Dominant land was turned from leasehold to freehold.
Held: The change from leasehold to freehold was not fatal to the easement - it will remain for the 999 years; but the right granted could not benefit or burden the freehold conversion.

Question 2

Re Ellenborough Park

Answer 2

Lists four characteristic of an easement:

1. Must be a dominant and a servient tenement.
2. Easement must accomodate the dominant tenement.
3. Owners of dominant/servient tenement must be different people.
4. Right must be capable of forming subject matter of a grant.

Question 3

London& Blenheim Estates v Ladbroke Retail Parks

Answer 3

1st requirement of Re Ellenborough Park. It never occurred in this case as before dominant tenement had been acquired, the servient tenement had been disposed of.

Question 4

Harris v Flower

Answer 4

“If a right of way be granted for the enjoyment of Close A, the grantee because he owns or acquires Close B cannot use the way in substance for passing over the Close A to Close B”

Question 5

Das v Linden Mews

Answer 5

The owners of the street (servient land) successfully argued that the rule in Harris v Flower prohibited the house owners from exercising the right of way attached to their house to drive along the street to the land they had acquired for parking.

Question 6

Macepark (Whittlebury) Ltd v Sargeant (No 2)

Answer 6

Anicillary use (a situation in which the C can successfully argue to use the easement to get to newly acquired land) will not be ‘in substance for the benefit of the non-dominant land, either because there is no benefit to the non-dominant land, or because any benefit is insubstantial’

Question 7

Hill v Tupper

Answer 7

2nd requirement of Re Ellenborough Park - cannot create new forms of easements, which fall outside the requirements of an easement

Question 8

Copeland v Greenhalf [1952]

Answer 8

Easement for parking?
D claimed that he had a right to park on a small strip of land which belonged to C.
There cannot be an easement over land of which the claimant is in possession which could amount of exclusive possession or which would amount to joint user.

Question 9

Moncrieff v Jamieson [2007] UKHL

Answer 9

Sole use for a limited purpose is not inconsistent with the servient owner’s retention of possession and control or inconsistent with the nature of an easement. –> an easement of parking possibly recognised at English law
Note that this an appeal from a Scottish law case, so not expressly binding in the UK.

Question 10

Batchelor v Marlow [2003]

Answer 10

Parking for 9 and half hours on weekedays would excessively restrict the enjoyment of servient owner’s land –> not an easment

Question 11

Wheeldon v Burrows

Answer 11

Easements operating under the rule in Wheeldon v Burrows.

Quasi-easements that are continuous and apparent enjoyed by the original owner will pass onto the new owner of the land

Question 12

Re Webb’s Lease

Answer 12

Webb made an implied reservation to put posters on the upper floor of his building, which he leased. The right was continuous and apparent, so qualified as a mode of acquisition of easements under Wheeldon v Burrows

Question 13

McAdams Homes v Robinson

Answer 13

Excessive user principle - two houses where a significant increase in the use, such that was not justified by the original easement.

Question 14

Macepark Ltd v Sargeant (No 2)

Answer 14

The easement cannot extend to benefit a new land acquired by the owner of the dominant tenement.

Question 15

Begley v Taylor

Answer 15

Prescription (the neighbours used the land for over 20 years as a road) and the new patio restricted the use to the point it was excessive.

Question 16

Re Webb’s Lease

Answer 16

Implied reservations are harder to show. It is the landowner’s duty to spell those rights out expressly upon conveyance.
Implied reservation not granted.

Question 17

Pwllbach Collery Company v Woodman

Answer 17

Easements necessary for a common purpose - the purpose has to have a particular and definite manner

Question 18

Wong v Beaumont Property Trust

Answer 18

Even though it was not realised by the parties at the time of the lease, the ventilation duct was in fact necessary from the very beginning for the purpose specified in the lease - sufficient for the principle to come into play.

Question 19

Kent v Kavanagh

Answer 19

Qualifies the rule in Wheeldon v Burrows to rights which are necessary for the enjoyment of the land.

Question 20

Borman v Griffith

Answer 20

The alternative access claimed in the case provided some additional advantage to the claimant’s business, so he was granted the access despite there being a second route which he could have used.

Question 21

Wood v Waddington

Answer 21

s. 62 LPA can also be used to turn the landowner’s own past use of the retained land into an easement in favour of the new owner of the transferred land. ???

Question 22

Union Lighterage v London Graving

Answer 22

Easements of necessity - if there is any other access to the land, even if very inconvenient - not easement by necessity

Question 23

Adealon International v Merton LBC

Answer 23

Rights should be expressly reserved
Where access over other land is possible, it will not be necessary to find than an implied easement of necessity was reserved (higher burden of proof for reservation than grant)