Easements Flashcards
What are easements? What kinds of rights are they?
An easement is a proprietary right to use or restrict the use of another’s land. Easements are proprietary rights and as such can be enforced against third parties.
Capacity: What requirements need to be set out to be an easement?
Re Ellenborough Park:
A dominant and servient tenement must exist
The easement must accommodate the dominant tenement
There must be no common ownership or occupation of the dominant and servient tenements
The right claimed must lie in grant
Ellenborough - A dominant and servient tenement must exist
Two separate identifiable pieces of land must exist, one that is burdened by the easement (servient tenement) and another receiving the benefit of it (dominant) (London and Blenheim),
Hawkins v Rutter
Alfred Beckett v Lyons
Ellenborough -The easement must accommodate the DT - what are the 2 elements?
1) The easement must directly benefit the dominant land
2) The DT and ST must be sufficiently proximate (Pugh v Savage - RoW over one field to get to another, was a third field in the way but does not get rid of proximity)
Ellenborough -The easement must accommodate the DT - The easement must directly benefit the dominant land
It will do so where it improves the land and adds value, rather than conferring personal advantage to the dominant landowner; there must be a beneficial connection between the right and the normal use of the land
It will not benefit the land it only specifically benefits the specific business on the land (Hill v Tupper - bpat pm canal, not related to land benefitted business)
Unless the business has existed for a sufficiently long time (Moody v Steggles - pub sign, right connected to use of premises as always been a pub)
Ellenborough - There must be diversity of ownership or occupation (no common ownership_
The two pieces of land must be occupied by different people
Cannot have an easement over your own land (Roe v Siddons)
Ellenborough - right must lie in grant - 3 aspects?
1) Must be a capable grantor and grantee
2) sufficiently definite right
3) It must be judicially recognised
Ellenborough - right must lie in grant - capable grantore/grantee
estate in land (legal or equitable), legal capacity) Legal personality
In the absence of any contrary information one must assume that the estate owners are of sound mind. As a minor cannot hold an estate in land (s 1(6,1) LPA 1925) both must be 18 or over.
Ellenborough - right must lie in grant - right capable of exact definition (William Aldred’s case)
Bland v Mosely - C claiming right to view, too ambiguous. William Aldres.
Browne v Flower - C asking for easement of privacy, too indefinite.
Ellenborough - right must lie in grant - judicially recognised
right of storage (Wright v Macadam),
analogy - right to park (London & Blenheim)
New positive easements allowed, but no negative. Phipps v Pears.
Hunter v Canary Wharf - no signal due to building. No easement for TV signal. No new negative as will restrict owner’s right to build.
Capacity: 3 additional limitations?
(1) The servient owner must not incur expense
(2) The interest must not be exercisable as of right
(3) The right must not amount to exclusive possession (Grigsby v Melville)
Capacity - NO PAYMENT - The servient owner must not incur expense
Servient owner must not incur expense in relation to the easement (Regis v Redman) unless he is reimbursed by the dominant land owner (Rance v Elvin- E for water supply. Meter on their land. Easement to allow passage of water through the pipes)
The servient owner is not required to carry out repairs in order for the dominant owner to enjoy use of his easement (Jones v Pritchard) but must allow the dominant owner onto his land to carry out any repairs necessary for his enjoyment of it (Access to neighbouring land Act 1992)
Right to use a lift incurs expense (power) Dickstein v Kanevsky
Capacity - NO PERMISSION - The interest must not be exercisable as of right
The dominant owner must not require the servient landowner’s permission to exercise the right (Green v Ashco Horticulturalists)
right to park a van. Always moved van when asked to do so
Capacity - NO POSSESSION - The right must not amount to exclusive possession
(Grigsby v Melville)
Following Batchelor v Marlow the right does not amount to exclusive possession if the servient owner retains reasonable use of the land (e of parking 9-6 business days, failed as easement, dominant part of day) ouster principle
Alternative test in Moncrieff v Jamieson – does the servient owner retain possession and control of the land
Kettel v Bloomfold - follow batchelor and monc
What are the 3 methods of acquisition?
Express grant or reservation
Implied acquisition
Prescription
What is express grant?
Where the owner of a piece of land expressly grants an easement over his land to another person
What is express reservation? How is it interpreted?
owner expressly reserves an easement over a portion of the land which he is selling
Any express reservation will be interpreted strictly against the person who made the reservation (Cordell v Second Clanfield Properties)
Attwood v Boris Homes - burden has substantially changed (eg wanting right of drainage then building more homes)
Massey v Boulder - RoW cannot be used substantially for benefit of another purpose (creating a cookery school on one’s land and using the pathway for more people).
St Edmundsbury & Ipswich Diocesan Board of Finance v Clarke (No 2). Church, access to church across rectory grounds. Deed did not make clear by foot or vehicle. Clarke insisted RoW was on foot only - caused issues for weddings and funerals. Looked at evidence, solid gateposts four feet apart, could only get through by foot.
Implied acquisitions - what are the 4 ways which they are implied into the deed?
Note: Implied easements become extinguished when the lease expires
(1) Necessity
(2) Common Intention
(3) Under the rule in Wheeldon v Burrows
Applies to grants only, not reservations
(4) Using s 62 LPA 1925
Applies to grants only
5) grants only - acquired by prescription
Implied acquisitions - necessity
The existence of the easement must be essential for the use of the dominant land
test - can land be used at all without implied easement?
Ex: right of way where landlocked DT surrounded by 3rd party land (Adealon v Merton BC)
Not sufficient for an easement to:
- Increase enjoyment of DT
- Make access to the DT more convenient (Manjang v Drammeh)
Implied acquisitions - common intention - what is it
Land sold/leased for a specific purpose and an easement required to realise that purpose
Implied acquisitions - common intention - requirement
(i) Parties intended to create the easement.
Very specific common intention must exist at the date of grant (Wong v Beaumont)
(ii) Particular easement essential for particular purpose (Pwllbach Colliery v Woodman)
Implied acquisitions - common intention - where does the burden of proof lie?
On sale or lease of part of land, grantee will receive all quasi-easements which are
- Continuous and apparent AND
- Necessary to the reasonable enjoyment of that land AND
- Used at the time of the grant by the owner of the whole for the benefit of the part sold/leased
See Kent v Kavanagh C/A 2006
Implied acquisitions - Wheeldon v Burrows - details
Only applies to grants
Rule: on sale or lease part of the land or an agreement to sell / lease part of the land (Borman v Griffiths) where the land belonged to a single owner immediately prior to the sale, the grantee will receive all quasi-easements as full easement
The rule can only operate on a sale or lease of part when, immediately prior to the sale, there was a common owner and occupier of the whole (Kent v Kavanagh)
Also applies where the owner divides and sells all of his land; new owners of both parts receive the quasi-easements applying to each part (Swansborough v Coventry)
May be expressly excluded by s 62(4) LPA 1925
Implied acquisitions - Wheeldon v Burrows - 3 requirement
the quasi-easements must be:
Continuous and apparent
Necessary to the reasonable enjoyment of the dominant land
In the use at the date of transfer
Implied acquisitions - Wheeldon v Burrows - 3 requirement - continuous meaning?
Continuous - must be a sense of permanence, which can come from regular use
11 months non-use prior to sale sufficient to constitute regular use (Costagliola v English)
Implied acquisitions - Wheeldon v Burrows - 3 requirement - apparent meaning?
Apparent – it must have been detectable from careful inspection of the land by a person ordinarily conversant with the subject (Pyer v Carter)
Judged using common sense, honesty and decency (Sovmots Investments v Sec of State for the Environment)
Implied acquisitions - Wheeldon v Burrows - 3 requirement - necessary to the reasonable enjoyment of the dominant land
Satisfied if it enhances the enjoyment of that land
This is a high threshold (Wheeldon v Burrows)
Implied acquisitions - Wheeldon v Burrows - 3 requirement - In use at the date of transfer
It must be shown that it had been exercised in the recent past and was expected to be exercised again in the near future
The use must have been by the common owner (Kent v Kavanagh)
Ability to operate on an agreement to sell / lease is what differentiates it from s 62 Implied acquisition
Implied acquisitions - s62 lpa - details
Only applies to grants
A conveyance of land will convert all quasi-easements, licences and other relevant rights into full easements (Wright v Macadam)
May be expressly excluded by s 62(4) LPA 1925 – mention if it hasn’t
Implied acquisitions - s62 lpa - requirements
A conveyance includes all “easements, rights and advantages… appertaining to or enjoyed with the land”
‘conveyance’ = Transfer and Lease by deed
2 functions of s.62:
‘ordinary’ operation of s.62: transfers the benefit of existing easements on transfer of land
‘unintended’ operation of s.62: method of creating an easement!
Limit… green v ashco, intermittend not enough. must be transfer by deed.
Implied acquisitions - s62 lpa - examples
Tenants use of a coal shed on the landlord’s land converted into a fully fledged easement on the renewal of the lease (Wright v Macadam)
A tenant’s use of a driveway became an easement when he bought the freehold of his previous leasehold estate (International Tea Stores v Hobbs)
Acquisition - prescription - what is it
Easements can be acquired where they have been exercised over a piece of land for a long period of time, but where no actual grant of the right can be traced
Acquisition - prescription - requirements
Right must have been exercised between owners of fee simples, who knows the use and is able to resist it
The right must be exercised ‘as of right’.
The right must have been exercised continuously (i.e. regularly) (Mills v Silver)
The owner must know of the right and had the ability to stop it but failed to do so (Williams v Sandy Lane)
What are the 3 methods of prescription?
Common Law Prescription
Lost modern grant
Prescription act 1832
Common Law Prescription - requirements
(1) The user must demonstrate he exercised the right for 20years, and
(2) There must be no evidence to suggest that the right fell out of use / did not exist between the present day and 1189
Lost modern grant - requirements
Common law prescription must not be available
The user must demonstrate that he/she exercised the right continuously for at least 20yrs
Prescription Act 1832 - requirements
The user must have exercised the right continuously up to the point when a ‘suit or action’ is brought against him (s 4). The requirements vary depending on how long the right has been exercised for:
20yrs and:
- There must have been no interruption of the right lasting longer than a year
- The right must have been exercised ‘as of right’
Where oral permission to use the right has been granted, this will defeat the user’s claim to have exercised the right ‘as of right’
- The ST owner must be of sound mind, over 18 and not a tenant for life
40yrs and:
- The right must have been exercised ‘as of right’
- Oral permission will not prevent this
No interruption of the right will prevent this
Different rules for easements of light
One period of 20 years only is necessary
Can be defeated by express written consent
Can be acquired against landlord or tenant
Amount of light is that necessary for ordinary use and enjoyment of the premises
Carr-Saunders v Dick Mc Neil Associates
Entitled to such light ‘as will leave his premises adequately lit for all ordinary purposes for which they may reasonably be expected to be used’
Amount dependent on ordinary use – a greenhouse needs more than a warehouse (Allen v Greenwood)
Requirements for a legal easement
(1) It must be created by deed (s 52(LPA 1925)
To be a deed a document must be clear on its face it’s a deed, signed by the grantor, properly witnessed, and delivered (s 1 LP(MP)A 1989)
It will be created by deed if it implied into a lease of over 3 years or
(2) Created for the duration of a freehold or leasehold term (s 1(2)(a) LPA 1925)
(3) If expressly granted it must be registered (s 27(2)(d) LRA 2002)
Failure to register means it can only be equitable
Requirements for an equitable easement
An equitable easement will be valid if it falls into one of the following situations
(1) The grant of a legal easements fails but there is an s 2 LP(MP)A compliant contract capable of specific performance
The contract must be in writing, signed by both parties, and contain all the terms expressly agreed.
(2) The easement is acquired impliedly into an equitable estate. It must simply be implied into a document which creates an equitable estate
(3) An easement is created for an uncertain duration, the grant must be in signed writing (LPA 1925, s 53(1)(a))
(4) The grantor’s estate is equitable and he uses signed writing (LPA 1925 s 53(1)(a))
How can one pass the benefit of the easement?
The conveyance of the DT will result in the benefit passing under s 62 LPA 1925
How can one pass the burden?
Whether the burden will be enforceable against the ST depends on whether the land is registered / unregistered and whether the easement is legal / equitable
Registered land - expressly acquired easements
Registration required as a registrable disposition (s 27(2)(d) LRA 2002).
Once registered it will bind anyone acquiring the ST
Notice must be entered on the Charges Register of the ST (s 38 LRA 2002)
Registered land - impliedly acquired easements
These will constitute overriding interests that will bind subsequent purchasers under sch 3, para 3 LRA 2002.
In order to override a registered disposition it must either be: within the purchaser’s actual knowledge, or be obvious on reasonable inspection, or have been exercised within a year prior to the disposition
Registered land - equitable easements
Notice must be entered on the Charges Register of the ST (s 32 LRA)
Failure to enter notice will result in the easement binding everyone except a purchaser for value of the ST (s 29 LRA)
May bind a purchaser for actual consideration if it held to be an overriding interest under LRA 2002 sch 3, para 2 – must be in actual occupation
Chaudhary v Yavuz – right to use a metal staircase not ‘actual occupation’
Unregistered land - legal easements
Automatically binding (Mercer v Liverpool)
Unregistered land - equitable easements
post 1 Jan 1926
Registration as Class D(iii) land charge required to bind all purchasers (s 198 LPA 1925)
Failure to register will result in everyone except a purchaser of legal estate for money or money’s worth being bound (s 4(6) Land Charges Act 1972)
2 ways one may extinguish an easement?
Expressly and impliedly
Extinguishing easements - express
D owner may only release S owner by deed
Exception: where S owner has relied on D owner’s oral promise of release (Waterloo v Bacon)
Extinguishing easements - implied
Extinguished if the D owner intended to abandon his rights to it
Non-use alone insufficient but may constitute evidence of intention to abandon (Williams v Sandy Lane). 175yrs non-use didn’t constitute abandonment.
Non-use must be accompanied by some act adverse to the right’s enjoyment
Swan v Sinclair – right of way not used for over 50 years had been blocked by fences and uneven ground; held to be abandoned
Moore v Rawson – Right of light abandoned by replacing window with a wall
Excessive use of the easement - and 2 cases
Use of the easement must not be significantly greater than the use at the time when it was created
Wood v Saunders – house’s right of drainage excessively increased when it was altered into housing for 150 people
Jelbert v Davis - Right of access, wanted to change land into a caravan park, an injunction granted
Remedies
Injunction
DT can get one (Tamares v Fairpoint Properties)
Commonly used to prevent excessive use
Damages
Self-help
DT can deal with the interference or obstruction themselves provided no more force than reasonable necessary is used and that no-one is harmed in the process
