Easements

Question 1

How can you distinguish an easement from a lease and a licence?
What do you need for an easement?
What is there a possibility of an easement arising through?

Answer 1

It doesn’t give any possessory rights over the land like a lease or licence does.

Need two bits of land for an easement! DT and ST (the plot with all the stuff ON it will be the ST!)
They are rights specific to an individual so can pass.
Note that easements on the burden land are passive - there is a duty on ST to not obstruct (Copeland v Greenhalf)

There is a possibility of an easement arising through estoppel (Crabb v Arun, Joyce v Epsom)

Question 2

What are the 4 characteristics of an easement?

Answer 2

Re Ellenborough Park

1. DT and ST
2. DT and ST owners must be different legal persons (it is possible to have easements between landlord and tenant)
3. Easement must accommodate the DT (It must confer some kind of benefit on the DT)
   This means the plots have to be geographically close!!
   Recreational use is too trivial to say it accommodates the DT.
4. The right claimed must “lie in grant”
   Grantor and grantee must be capable of granting and receiving a grant.
   Rights must be capable of existing as an easement within the accepted definitions of the right. The right must be sufficiently clear that it could be defined verbally or in a deed.

Question 3

Easements of:
Parking?
Toilet?
Fire escape?
To make a noise?

Answer 3

Parking - Blenheim Estates
Toilet - Miller v Emser
Fire escape - Chaudhury v Yavuz
To make a noise - Coventry v Lawrence 2014
Dixon thinks this is a bad decision, can’t channel noise like you can water!

Question 4

Fencing?
Recreational use?
Hang a pub sign?
Canal?
Good view?

Answer 4

Fencing (repair) - yes - Crow v Wood
Rec use - no - Re Ellenborough Park
Hang a pub sign - yes - Moody v Steggles
Canal - no - Hill v Tupper - canal is public space
Good view - no - Re Aldred (not enough to say it accommodates the DT)

Question 5

Is the list of easement closed or open?

Answer 5

Closed for negative easements (Phipps v Pears - right to protection from the weather rejected)
Example: right to a TV signal was rejected (Hunter v Canary Wharf)
Open list for positive easements (Dyce v Lady James)

Question 6

What is the recent case on easements? What were the points of law?

Answer 6

Regency Villas v Diamond Resorts 2015
Pool and golf course easements were allowed.
Recognises that you can have easements for purely recreational purposes.
Reflects societal change. Affluence of society increasing, so pools and golf courses more commonplace.
Recognising an easement is important. Easements are powerful, far more powerful than personal permission (this can be withdrawn, easements can’t be withdrawn).

Question 7

Does the DT enjoy exclusive possession of the burdened land? Or can the ST share it with him?

Answer 7

It depends. Law is not clear on this point.

There is a duty on ST not to obstruct (Copeland v Greenhalf)
Can have joint possession if “insert appropriate words” (Wright v Macadam)
It is a question of DEGREE. Small coal shed in a large property is ok (Wright v Macadam) but if a car a parking space (Blenheim Estates) then would have to question whether ST can share the land if he is under a duty not to obstruct (Copeland v Greenhalf)

Can have joint possession so long as ST only uses reasonably (Batchelor v Malow)

Scottish authority Moncrieff v Jamieson says can’t completely deny ST of possession. This is only persuasive on the court, and law com has recommended that it is wrong. Should be about “reasonable use” so must prefer Batchelor v Malow (ST can retain use so long as reasonable. ST to be left with reasonable use of land)

Question 8

The list of negative easements is closed. Case?

Give a brief list of negative easements.

Answer 8

Phipps v Pears - right to be protected from weather - rejected.
Hunter v Canarf Wharf - to signal - rejected.

Right to light, right to support, right to flow of air through a defined channel, right to free flow of water from adjoining land.

Question 9

ST has a duty to not obstruct. Case?

Can ST be compelled to do anything through an easement?

Answer 9

Copeland v Greenhalf.

Generally no, but there are two exceptions:
Repair fencing (Crow v Wood)
Generate electricity (Cardwell v Walker)

Question 10

Why do the law com not propose a statutory definition of easements?

Answer 10

Because the definition of easements needs to remain flexible so it can change with land use.
Regency Park Villas v Diamond Resorts 2015 is a good example of this.
Could argue the list of negative easements could be statutorily codified (since closed - Phipps v Pears).

Question 11

What are the two ways of expressly creating an easement?

Answer 11

1. Deed and register. Rare.
2. Splitting up the land - reservation.
   Reserving a bit of the ST for yourself (DT) when sell it on.
   Still need deed and register for this, if only used a written instrument you would get an equitable easement.

Question 12

What are the four ways to create an easement impliedly?

How can you protect against the implication of easements?

Answer 12

1. Necessity (Walby v Walby)
2. Common Intention (Stafford v Lee, Wong v Beaumont)
3. Wheeldon v Burrows (don’t need this any more due to Woods v Waddington)
4. S.62 LPA 1925

Implied easements are usually only a factor to be taken into consideration where something has gone wrong.
Should advise two contract terms: one with the easements you want and one expressly excluding implied easements.

Question 13

What is the authority on implying an easement out of necessity?

Answer 13

Walby v Walby

Must be absolutely necessary, e.g. Landlocked.

Question 14

Which two cases would you use as the authority on common intention implied easement creation?

Answer 14

V similar to implying an easement out of necessity, but here it is when X sells to Y. So say it was within their common intention to create an easement when the land transfer happened.

To build a house (Stafford v Lee)
Chinese restaurant (Wong v Beaumont)

Question 15

Which two cases do you need to mention in relation to Wheeldon v Burrows? What was Wheeldon v Burrows about (briefly)?

Answer 15

W v B is about transfer of land, says has to have been using it before, nec for enjoyment of land, continuous and apparent USE pre-transfer
Only operates for transfer of land NOT for reservation.

NOW
Wood v Waddington and Platt v Crouch
Makes it clear that s.62 applies REGARDLESS of whether there has been prior diversity (2 or more on land prior to sale (split))

Question 16

What is the fourth way of impliedly creating easements? Explain in full.

Answer 16

S.62 LPA 1925
CANT USE THIS FOR RESERVATION (has to be done expressly)
Can be used regardless of whether prior diversity (2 or more on land prior to sale) - Wood v Waddington established this

• Need a sale of part of the land alleged to be benefitted by the rights
• Sales need to be legal conveyance (deed)
• Rights must be capable of being easements - can’t create impliedly what you can’t create expressly!
• Rights (USE of rights,not just the their existence) must be continuous and apparent before the sale - look at the land: is there physical evidence?
• can’t have been expressly excluded

Question 17

What is the final method is implying easements (not on the syllabus)?

Answer 17

Prescription
Long use. Min 20 years
Law a mess, needs reform -> law com report March 2011

Question 18

What does an easement take on the character of?

Answer 18

The document it is implied into!
If done by a deed (e.g. S.28 or s.29 transfer) then legal
If done by a covenant or other written instrument then it will be equitable.

Question 19

When will easements bind the transferee?

Answer 19

Where they are an OI! Schedule 3
Need to be legal to be an OI.
E easements won’t bind - have to enter on the register via a Notice, otherwise nearly impossible for E easements to be OIs (Chaudhury v Yavuz)

The imposition of a personal constructive trust was rejected in Groveholt v Hughes.

Question 20

Once an easement exists what happens to it when the land is transferred?

Answer 20

Once an easement exists it becomes annexed to the DT (Wall v Collins)

For the ST it depends on the transfer as to whether or not the easement binds.
S.28 - yes
S.29 - only if easement is an OI! Will only be an OI where legal and the owner of the OI is in actual occupation (Schedule 3)

Schedule 3 - legal easement will only bind if:

• Obv on reasonably careful inspection of the land?
• Does the purchaser (Y) know of the easement? (Actual or constructive knowledge needed for this?)
• Has it been used in 12 months prior to the transfer to Y?

Question 21

What did the 2011 law com report have to say? 7 points.

Answer 21

1. Law of prescription should be completely reformed - replace with a new single statutory test to make it simpler and reduce litigation.
   So a complete overhaul. Prescription Act 1833 = one of the worst drafted acts on the statute books.
2. Implied easements
   Complex, can depend on if a grant or a reservation, and on if continuous and apparent. So needs reform to reduce litigation and make land more alienable and less costly to transfer.
   Want to replace with a single statutory principle: UOII Use Obvious Intention Interference
3. Use of land at time of grant
4. Needs to be obvious (physical features on ST)
5. Intention for future use of land known to both parties at the time of the grant (this is key, protects ST)
6. Must take into account the potential Interference on ST plot
   Idea: s.62 should no longer be a trap, so can never turn a licence into an easement.
   Is this a good idea?
   The 4 current methods of implying easements arose from reality (practical use) so scrapping these may not solve problems.
   People in favour are big landowners, since will make transactions cheaper, quicker, easier. Not so good for non-commercial parties.
7. If 20 years of non-use then easements should be abandoned. This is good since easements are very hard to abandon (Dwyer v Westminster CC - 50 years of non-use and still couldn’t abandon!)
8. It should no longer be possible for a profit to arise by prescription or implication. These mostly have a commercial nature, should be granted expressly - need a contract.
9. Reform on law of covenants
   Want to allow the passing of the burden of positive covenants - do this by making it registrable so easy to identify (need a deed).
   Idea: land changes hands frequently over time so it can be difficult to find the person to sue on covenant. If make it registrable then makes it clear, so easier to enforce a covenant.
   Will essentially transform it into a similar process to registering easements.
10. Give jurisdiction to the property chamber of the first tier to have power over discharge or modify easements when it is in the public interest to do so. This jurisdiction already exists in relation to covenants, so law com wants to extend it to easements.
    NZ, Scotland, and N Ireland already do this.
11. Scrap the rule which says you can’t create an easement over your own land.
    This rule creates problems for big developers, so want to make it easier for them to create easements over subplots before they sell them on.
    This rule also affects mortgages - where can’t sell or get security over one plot of land because it affects the borrower’s other annexed plot. This will be good for those with large holdings of land, will ease commercial transactions and will help people mortgage plots to raise funds.

Question 22

What was the law com report 2015 about?

Answer 22

Right to light (right to light through a defined aperture)
They want to modify the way in which light may be enforced, since it can be incredibly disruptive to redevelopment of land in built-up areas.
Atm - the only way to build houses is to buy easements of light from people so you can build, this makes it incredibly expensive.
Reform - have to notify early on if going to seek an injunction or seek compensation to prevent plans (and financial plans) being scuppered.
This will make the building/redevelopment process much cheaper and less cumbersome for the developer.

Question 23

So, in sum, what are the law com (not) proposing to do?

Answer 23

They are not proposing a statutory definition of easements.
Should they be? No.
Need CL flexibility so law can easily adapt to change.
Already have a closed list of negative easements (Phipps v Pears) but open list of positive easements (Dyce v Lady James)
ST must be left with “reasonable use” of the land (Batchelor v Malow)
Example of flexibility: Regency Park Villas v Diamond Resorts
Swimming pool and golf club would historically have been seen as recreational, but now capable of being easements. Reflects how society and affluence levels of society changes.

Easements can’t be withdrawn, personal permission can, so need to retain this power in the CL, not to put it into statutory rules. CL developed out of practical use of land and should continue to be allowed to do so.