Easements

Question 1

What are easements? What kinds of rights are they?

Answer 1

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.

Question 2

Capacity: What requirements need to be set out to be an easement?

Answer 2

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

Question 3

Ellenborough - A dominant and servient tenement must exist

Answer 3

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

Question 4

Ellenborough -The easement must accommodate the DT - what are the 2 elements?

Answer 4

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)

Question 5

Ellenborough -The easement must accommodate the DT - The easement must directly benefit the dominant land

Answer 5

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)

Question 6

Ellenborough - There must be diversity of ownership or occupation (no common ownership_

Answer 6

The two pieces of land must be occupied by different people

Cannot have an easement over your own land (Roe v Siddons)

Question 7

Ellenborough - right must lie in grant - 3 aspects?

Answer 7

1) Must be a capable grantor and grantee
2) sufficiently definite right
3) It must be judicially recognised

Question 8

Ellenborough - right must lie in grant - capable grantore/grantee

Answer 8

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.

Question 9

Ellenborough - right must lie in grant - right capable of exact definition (William Aldred’s case)

Answer 9

Bland v Mosely - C claiming right to view, too ambiguous. William Aldres.

Browne v Flower - C asking for easement of privacy, too indefinite.

Question 10

Ellenborough - right must lie in grant - judicially recognised

Answer 10

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.

Question 11

Capacity: 3 additional limitations?

Answer 11

(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)

Question 12

Capacity - NO PAYMENT - The servient owner must not incur expense

Answer 12

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

Question 13

Capacity - NO PERMISSION - The interest must not be exercisable as of right

Answer 13

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

Question 14

Capacity - NO POSSESSION - The right must not amount to exclusive possession

Answer 14

(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

Question 15

What are the 3 methods of acquisition?

Answer 15

Express grant or reservation

Implied acquisition

Prescription

Question 16

What is express grant?

Answer 16

Where the owner of a piece of land expressly grants an easement over his land to another person

Question 17

What is express reservation? How is it interpreted?

Answer 17

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.

Question 18

Implied acquisitions - what are the 4 ways which they are implied into the deed?

Answer 18

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

Question 19

Implied acquisitions - necessity

Answer 19

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)

Question 20

Implied acquisitions - common intention - what is it

Answer 20

Land sold/leased for a specific purpose and an easement required to realise that purpose

Question 21

Implied acquisitions - common intention - requirement

Answer 21

(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)

Question 22

Implied acquisitions - common intention - where does the burden of proof lie?

Answer 22

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

Question 23

Implied acquisitions - Wheeldon v Burrows - details

Answer 23

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

Question 24

Implied acquisitions - Wheeldon v Burrows - 3 requirement

Answer 24

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

Question 25

Implied acquisitions - Wheeldon v Burrows - 3 requirement - continuous meaning?

Answer 25

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)

Question 26

Implied acquisitions - Wheeldon v Burrows - 3 requirement - apparent meaning?

Answer 26

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)

Question 27

Implied acquisitions - Wheeldon v Burrows - 3 requirement - necessary to the reasonable enjoyment of the dominant land

Answer 27

Satisfied if it enhances the enjoyment of that land

This is a high threshold (Wheeldon v Burrows)

Question 28

Implied acquisitions - Wheeldon v Burrows - 3 requirement - In use at the date of transfer

Answer 28

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

Question 29

Implied acquisitions - s62 lpa - details

Answer 29

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

Question 30

Implied acquisitions - s62 lpa - requirements

Answer 30

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.

Question 31

Implied acquisitions - s62 lpa - examples

Answer 31

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)

Question 32

Acquisition - prescription - what is it

Answer 32

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

Question 33

Acquisition - prescription - requirements

Answer 33

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)

Question 34

What are the 3 methods of prescription?

Answer 34

Common Law Prescription

Lost modern grant

Prescription act 1832

Question 35

Common Law Prescription - requirements

Answer 35

(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

Question 36

Lost modern grant - requirements

Answer 36

Common law prescription must not be available

The user must demonstrate that he/she exercised the right continuously for at least 20yrs

Question 37

Prescription Act 1832 - requirements

Answer 37

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

Question 38

Different rules for easements of light

Answer 38

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)

Question 39

Requirements for a legal easement

Answer 39

(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

Question 40

Requirements for an equitable easement

Answer 40

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))

Question 41

How can one pass the benefit of the easement?

Answer 41

The conveyance of the DT will result in the benefit passing under s 62 LPA 1925

Question 42

How can one pass the burden?

Answer 42

Whether the burden will be enforceable against the ST depends on whether the land is registered / unregistered and whether the easement is legal / equitable

Question 43

Registered land - expressly acquired easements

Answer 43

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)

Question 44

Registered land - impliedly acquired easements

Answer 44

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

Question 45

Registered land - equitable easements

Answer 45

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’

Question 46

Unregistered land - legal easements

Answer 46

Automatically binding (Mercer v Liverpool)

Question 47

Unregistered land - equitable easements

Answer 47

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)

Question 48

2 ways one may extinguish an easement?

Answer 48

Expressly and impliedly

Question 49

Extinguishing easements - express

Answer 49

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)

Question 50

Extinguishing easements - implied

Answer 50

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

Question 51

Excessive use of the easement - and 2 cases

Answer 51

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

Question 52

Remedies

Answer 52

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