Easements

Question 1

Law Commission Recommendation

Answer 1

Law Com.186 recommended that :

There should be no requirement for the
dominant and servient owners to be different persons, provided that the dominant and servient estates in the land are registered with separate title numbers.

An
easement would not, therefore, be extinguished if, the two estates
in land came into common ownership and possession.

However, it would be
extinguished if the common owner of the two estates were to apply for a single
title.

We provisionally propose that where the benefit and burden of an easement
is registered, there should be no requirement for the owners to be different
persons, provided that the dominant and servient estates in land are
registered with separate title numbers.

Question 2

Re Ellenborough Park

Answer 2

Issue: What do you need to have in order for an easement to exist? (ratio)

Evershed, states that there are four things that must be present in order for an easement to exist:

1) There must be dominant land and servient land
2) The easement must accommodate the dominant land

3) The dominant and servient lands must be either owned or occupied by
different persons

4) The right must be capable of forming the subject-matter of a grant

Question 3

The right must be capable of forming the subject-matter of the grant

Answer 3

Re Ellenborough park

1) There must be a capable grantor.
2) There must be a capable grantee.
3) The right must be definable.

Question 4

Hill v Tupper

Answer 4

X gave Mr Hill an exclusive contractual licence to hire boats out. Mr Tupper also hired boats out on the canal. Mr Hill wished to stop Mr Tupper from operating. He argued that it was an easement and therefore sought to enforce his right against Mr Tupper.

Held: The benefit of an easement must be for the land. Here, the right to exclusive use of the canal was not for benefitting the land itself, but just for the business.
Could not be an easement because the river was not used
for “accommodating” the claimant’s land.

Hill v Tupper there was nothing on the dominant land, the business was on the servient land.

Question 5

Platt v Crouch

CA

Answer 5

Mooring rights were claimed for the benefit of a hotel.

Platt v Crouch, there was a business on the dominant land which could benefit from the claim of rights.

Question 6

Re Ellenborough Park

CA

Answer 6

The case concerned a park surrounded by houses, could use this park subject to a fee. Held: the part enhances the enjoyment of the house. Therefore, it could be an easement. “mere rights of recreation for amusement” which could not be easement.

Ellenborough Park is authority for the proposition that an easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure can exist in law

Question 7

As to the requirement that the right must be capable of forming the subject matter of a grant, Ellenborough Park … identified the following questions

Answer 7

(i) whether the rights are expressed in language which is too wide and vague;
(ii) whether such rights would amount to rights of joint occupation or substantially deprive the park owners of proprietorship or legal possession;
(iii) whether such rights would constitute mere rights of recreation, possessing no quality of utility or benefit.

Question 8

Regency Villas Title Ltd v Diamond Resorts

Answer 8

Claim by timeshare owners to use sporting and leisure facilities including a tennis court, swimming pool, garden, a golf course and squash courts.

judge picked up on comments from Re Regents Park of “mere rights to recreation” what this refers to is rights that do not benefit the dominant land because they are not connected with the use of the dominant land. Therefore, with a house, you do not expect to have a golf course, do not expect to have horse racing land. But Regency Villas concerned timeshare units and these existed for recreational purposes. Therefore, the judge held that the rights being claimed enhanced the enjoyment of the time share units. Therefore, could be easements.

Question 9

Moody v Steggles

Answer 9

It is sufficient to benefit a trade or business on the land:

INTERESTING CASE TO COMPARE WITH HILL V TUPPER
IF THE RIGHT ACCOMODATES THE DOMINANT TENEMENT, IT CAN BE AN EASEMENT
C owner a pub
Pub was down a narrow alleyway
for the last 40 years, a sign had hung on the D’s property which was on the highstreet (sign directed to the pub)
D took the sign down because it creaked
C claimed right to hang = easement
HELD - right to hang = an easement. Although the right benefitted the pub, not the land per se, the business was very closely connected to the land, and any owner of the land would likely run a pub from the premises. Therefore, right connected to the land. The right benefitted the land (because the land would always be used as a pub, or some business like premises).

Question 10

Wright v Macadam

Answer 10

A tenant can have an easement over other land belonging to his landlord.

The dominant and servient lands must be either owned or occupied by
different persons.

Question 11

Crow v Wood

CA

Answer 11

An easement should not normally require expenditure by the servient owner BUT EXCEPTION:

the right to have a fence or wall kept in repair is right in the nature of an easement

It will never be extended and law commission proposes that this no longer should be an easement but a new interest of a land obligation.

Question 12

Liverpool CC v Irwin

Answer 12

A servient owner may be under an obligation to repair the means of access in property in multiple occupancy:

High rise block of flats in multiple occupancy. HL implied easements to use the stairs, lifts and rubbish chutes, which remained in the occupation of the landlord. HL held that in these circumstances, of necessity there had to be an obligation on landowner to keep these in repair.

This was an extreme case.

This was absolutely essential to the tenants, without the stairs, lifts they could not get to their flat. As it was a high rise block, the tenants would not have been able to get together and pay for the repairs.

Question 13

London & Blenheim Estates Ltd v Ladbroke Retail Parks

Answer 13

Authority on the ouster principle.

“ousterprinciple”, theprinciplethat says in simple terms that an easement cannot arise where the effect of the purported easement is such as to exclude the beneficial owner from all reasonable use of his or her land that is subject to the easement.

Question 14

Wright v Macadam

CA

Answer 14

The tenant of a flat used a shed in the garden to store coal. CA held that this could be an easement.

Question 15

Copeland v Greenhalf

Answer 15

A wheelwright claimed the right to store vehicles on a strip of land. He was claiming a right to leave as many or as few vehicles for as long as he liked, if necessary to the exclusion of the servient owner. Held: this could not be an easement. Judge held that the claim was for practically the claim was for the whole beneficial use of the land or at least its joint use.

Question 16

Moncrieff v Jamieson

+

Batchelor v Marlow

principle

Answer 16

The weight of authority is that the relevant area of land is that over which the right is enjoyed, not the whole of the servient owner’s land

Question 17

London & Blenheim Estates Ltd v Ladbroke Retail Parks

Answer 17

Claim to park a car anywhere in a large car park. Judge expressed view (obiter) that it could be an easement. By contrast in Batchelor v Marlow there was a claim to park 6 cars on an area of land during working hours from Monday to Friday. This was held to be incapable of being an easement.

Question 18

Batchelor v Marlow

Answer 18

Claim to park six cars on area of land during working hours Monday to Friday. Held: incapable of being an easement. The view of the court was that for that period of time, the owner could not use his own land.

The explanation of these two cases is based on the area of land over which the right is claimed. Therefore, suggested reconciliation is that if you claim a right to park your car on an area of land that is just the size of your car then it cannot be. But if you are to park your car on a larger area of land then it can.

Question 19

Moncrieff v Jamieson

HL

Answer 19

Lord Scott, he rejected the application of the ouster principle and took the view that Batchelor v Marlow was wrong. He relied on article by Hill-Smith and he said that even if there are parking rights over an area of land, the owner can still make use of this land. He can build above it/below it, he can put up advertising boarders. In his view he thought that there should be no restriction on the rights that someone grants to another it is up to landowner, if servient owner wants to grant excessive rights he ought to be able to. Therefore, in lord Scotts view a right is capable of being an easement as long as the owner retains possession and control of the land, subject to reasonable exercise of the right.

Question 20

Since Moncrieff v Jamieson have courts changed their approach and followed it?

Answer 20

There is a number of first instance decisions which have regarded themselves as bound by Batchelor v Marlow, but the courts have been more willing to find that the servient owner still has reasonable use of his land.

Question 21

Virdi v Chana

Answer 21

Recent willingness of the courts to find an easement despite not following Moncrieff v Jamieson strictly.

Right to park half of a car on the land. Held could be an easement because servient owner could plant round the edges, put up signs, go onto the land to maintain a fence and alter the surface of the parking area. Although the land would be filled when a car was partially parked on it, the servient land owner could still alter the surface of the land and its boundaries, amongst other things, rendering ownership non-illusory

Question 22

Kettel v Blomfold

Answer 22

car parking space granted to someone with a lease of a flat. Held: could be an easement because servient owner could walk/drive across space if there was not car there, change the surface, put pipes below and could build or put wires above.

Question 23

Phipps v Pears

CA

Answer 23

The right claimed must be in the general nature of rights recognised as easements.

CA refused to recognise as an easement, a protection from weathering because then the landowner could not demolish his own house, even to build a better one because it would expose the neighbouring property to the wind and the weather.

Question 24

Hunter v Canary Wharf

HL

Answer 24

Television reception. HL the view (obiter) that can not have an easement to television reception because it is imprecise and it would be too restrictive on landowners who would not be able to erect tall buildings. Judgment in Hunter v Canary Wharf that a new negative easement might be recognised in future if

1) expressly granted and
2) precisely worded

Law commission thought that for the future there should no longer be an expressly granted negative easement but should instead be a land obligation.

Question 25

Nickerson v Barraclough

CA

Answer 25

Easements of necessity are based on inferred intention that they did not intend the grantee to be unable to access the land, not public policy, and can be precluded by a clear intention otherwise.

Question 26

Manjang v Drammeh

Answer 26

right of access by river. This prevented the implication of an easement by necessity.

Question 27

Titchmarsh v Royston Wate

Answer 27

right of access via a steep embankment. Fact that there was a right of access at all prevented the easement of necessity, even if it was inconvenient, it was not impossible.

Question 28

Adealon International Corpn Proprietary Ltd v London Borough of Merton

CA

ALWAYS MENTION THIS CASE IN NECESSITY CASES

Answer 28

Land was landlocked and still would not grant easement. Shows resistance to granting easement.

Not settled whether a possibility of access over a third party’s land will prevent the implication.

View was expressed that the mere possibility of access over someone else’s land should be irrelevant because the purchaser has an expectation of an access. Even where there is a possibility of access over a third parties land, this third party may refuse or may demand a sum for granting a right of access. This would mean that the purchaser has land to which he is locked out. Therefore, unless there is a right of access over someone’s land, there will be an implied easement of necessity

Question 29

Pwllbach Colliery Co, Ltd v Woodman

Answer 29

Court will imply a grant or reservation to give effect to the common intention.

But for this to happen:
1) the parties should intend that the subject of the grant or the land should be used in some definite and particular manner.

Question 30

Wong v Beaumont Property Trust

CA

Answer 30

If land is sold or leased for a particular purpose and this purpose cannot be carried out without a particular easement, then an easement of common intention will arise.

The case concerned a 21 year lease of cellars to be used as a restaurant. The lease contained covenants to use the property as a restaurant. Although the parties did not realise it at the time, the business could only lawfully be carried out with the installation of a ventilation system which would require a ventilation duct on the wall of L’s premises.

Although parties did not know, there was a need, without it the premises could not be used in the way they wanted. Held: an easement to have a ventilation duct on landlords premises had occurred. There was an act of intention to use the premises for a particular purposes which required this easement.

Question 31

Donovan v Rana

CA

Common intention

Answer 31

Court looks at the intention in relation to modern days.

A building plot was sold for the erection of a dwelling house. The purchaser claimed implied rights to connect to utilities (drainage, water, gas, electricity, phone) on the main road through the seller’s retained land.

Seller argued connection to such utilities were desirable or reasonable but not essential or necessary, he argued that purchasers could build

CA said in modern times, bearing in mind property was in busy area, these rights are necessary, necessary for use of property in manner contemplated by the parties.

Question 32

Stafford v Lee

CA

Answer 32

The intended use need not be a requirement, provided it is known to both parties

For common intention, he must establish a:

1) common intention as to some definite and particular user.
2) Then he must show that the easements he claims are necessary to give effect to it.’

“The requirement that the parties should have intended a definite and particular use for the land does not require that the intention be proved as certainty. It is enough to be proved on a balance of probabilities”

Question 33

Sweet v Sommer

Answer 33

Necessity = beyond foot access

Land sold to build a house. Issue arose as to vehicular access. Judge was of view that there was an implied grant of access in both these cases, on the grounds that the house would not be usable in the ordinary sense of the word without such access.

It was a question of fact. It was important that the house was some distance from facilities such as shops. Judge made it clear that judgment might have been different if the house was in the middle of a town, where right of access was not clearly necessary.

Question 34

Wheeldon v Burrows

CA

Answer 34

1) Allows quasi-easements to be converted into easements on division of land.

Requirments (Thesiger)

1) Continuous and apparent
2) necessary for the reasonable enjoyment of the property granted
3) The easement must have been and are at the time of the grant actually used by the seller.

Question 35

Continuous

Answer 35

1) seems to require nothing more than permanently or regularly in use.

Question 36

Apparent

Answer 36

1) requires that the existence of the easement be detectable on inspecting the land.

Question 37

Necessary to the reasonable enjoyment of the property granted”

Answer 37

Requires some degree of substantial benefit.

Question 38

Wheeler v J.J. Saunders

CA

Answer 38

In this case, the C already had a right of way / right of access to his land. He wanted a second right of way.
HELD - it was not necessary for the reasonable enjoyment for his land, as he already had a right of way.

Question 39

Borman v Griffith

Answer 39

Lease farming; alternative access impassable for heavy vehicles at certain times of the year. Court looked at the proposed use of land by tenant. The property was leased for poultry and rabbit farming, there was an established means of access, but tenant managed to convince court that this existing right of access was impractical for purposes of his trade because alternative passage was impossible for heavy vehicles during the year. This is not a case where he could not use the land for poultry and farming. But he could show court that to have a second means of access which could be used all year round was necessary for reasonable enjoyment of property. It was substantial benefit.

Question 40

Costagliola v English

Answer 40

‘Actual Use’.

Right had not been used for 11 months but wheeler v burrows still satisfied. But if use has not been used for significant period, it has to be asked whether it was abandoned or has there been no need to use it but still will be used when necessary.

Question 41

Ward v Kirkland

Answer 41

judge suggested without reaching conclusion that the first requirement, continuous and apparent relates to positive easements and the second requirement – necessary for reasonable enjoyment relates to negative easements. Easement concerned was a positive easement, it was not apparent so failed.

Question 42

Borman v Griffith

Answer 42

view was that both requirements had to be satisfied. But claim succeeded based on one and a half satisfied. Court held the easement was not continuous but was apparent and necessary for the reasonable enjoyment.

Question 43

Wheeler v J.J. Saunders

Answer 43

No authorities cited, one member of CA, Peter Gibson who disagreed with rest of court with application of law to the facts. Clearly stated that both requirements need to be fulfilled. Although other members of CA did not say anything clearly, we can imply from their judgments that they require satisfaction from both. Discussion from facts, the court thought the right was continuous and apparent but held claim failed because it was not necessary to the reasonable enjoyment.

Question 44

Borman v Griffith.

Answer 44

Also something inconsistent in the deed or contract because even if this is from the non-derogation of grant, if purchaser knows a right is not being granted and still goes a head and buys the property, the implication is that he thinks he can enjoy the property anyway

Question 45

Borman v Griffith.

Answer 45

An easement can be implied into contracts and other grants in equity

Question 46

Wright v Macadam

Answer 46

Case law established that s62 can create new easements, creating this out of pre-existing licences.

Question 47

Wright v Macadam

Answer 47

W had been granted a weekly tenancy of a top floor flat. With permission of landlord she used a shed in the garden for storing coal. She was then granted a new tenancy for 1 year in writing. Held: effect of s62 was that the licence (the permission that she had to use the coal shed) before grant of lease, was converted into an easement to use the coal shed. A kindness on part of landlord was converted into an easement.

Question 48

Goldberg v Edwards

Answer 48

It is necessary to show actual use of a right for the benefit of the dominant land. The relevant time to consider use is the date of execution of the conveyance.

Question 49

Goldberg v Edwards

Answer 49

A landlord leased an annex to his house. He permitted the tenant to access the annex through his house, although other access via a covered passageway was also possible. The tenant was replaced by the claimant, who also accessed the annex through the landlord’s house, against his wishes. The landlord stopped the claimant’s access through his house. Had the new tenancy converted the old tenant’s personal right of access into an easement. Held: yes, s62 LPA had converted the right and did not have a requirement of necessity.

Question 50

Green v Ashco Horticulturist

Answer 50

Where access through a passageway was permitted, but often locked, therefore requiring permission for each access, section 62 of the Law of Property Act 1925 would not convert this right into an easement.

Question 51

Goldberg v Edwards

Answer 51

The case concerned a house fronting the street with an annexe at the rear. The annexe could be reached through the house or by an outside passage. A contract for a lease was entered into in January and the prospective tenant went into occupation of the annexe. He was granted a personal right of access through the house. The lease was executed in July and backdated to January.

Question 52

Green v Ashco Horticulturist Ltd

Answer 52

Permission had to be sought every time the right of access was used. Permission had to be asked for every time the claimant wanted access and only granted access when convenient to landowner. Nature of that permission was not such that it could become an easement, it was too intermittent a nature so s62 did not operate.

Question 53

Wright v Macadam

Answer 53

Use by the tenant herself when in occupation either under an earlier title. Said that the it will not operate where exercise of right is temporary in the circumstances because an easement is perpetual. If clear that it is only until the landowner builds onto his land, it is temporary to everyone’s knowledge then this will not be converted into an easement under s62.

Question 54

Goldberg v Edwards

Answer 54

Use by the tenant himself when allowed into occupation early.

Question 55

Graham v Philcox

Answer 55

Use by a tenant of the property sufficient to give an easement to a purchaser. Property had tenant, tenant exercised right and when property sold to purchaser, the use by the tenant was enough to create an easement of fee simple duration for the purchaser.

Question 56

Wood v Waddington

Answer 56

It will also operate where the previous use has been by the owner of the whole provided the claimed easement is continuous and apparent:

Question 57

Wood v Waddington

Answer 57

Right was used once a month and physical evidence of a right of way so s62 applied. Although need for quasi easement to be continuous and apparent, do not have to satisfy wheeldon v burrows other requirement that it is necessary for the reasonable enjoyment of land. Judge at CA referred specifically to wording of s62 and emphasised that under s62 there is a reference of rights which can be said to be enjoyed with the conveyed land. It seems that there has to be evidence that landowner used the right for the benefit of the dominant land. If he uses a road on the servient land or track, you have to show more than the use because he could be using it because he owns that land, got to show that he is using that track on the servient land for the benefit of the dominant land.

Question 58

Graham v Philcox

Answer 58

Once acquired the right appertains to the land, not the interest with which it is originally given.

Right given to tenant but s62 converted it into an easement of fee simple duration.

Question 59

Wheeldon v Burrows

Answer 59

Implied reservation is much more limited because Generally, if a landowner wishes to reserve rights he must do so expressly

Question 60

Adealon International Proprietary Ltd v London Borough of Merton.

Answer 60

An easement of necessity is more difficult to establish by way of reservation than by way of grant and if part of the surrounding land is owned by a third party there must be clear evidence of intention

Question 61

Adealon International Proprietary Ltd v London Borough of Merton.

Answer 61

The case concerned a claim by the owner of land (referred to as the “red land”) to a right of way over land to the north (referred to as the “green land”). The red land and the green land had originally been in common ownership; the land to the west and east of the red land had at all times been owned by third parties. The red land bordered a highway to the south. The owner of the red and green land sold the green land in 1989 without reserving a right of way. There was some evidence that it was his intention to access the red land from the adjacent highway, although this was not clear and was regarded as immaterial. At that time planning permission for access to the highway would probably have been granted for some use of the red land; by 2005 it was clear that planning permission would be refused.

Question 62

B & Q plc v Liverpool and Lancashire Properties Ltd

Answer 62

The dominant owner can seek either damages or an injunction if there is substantial interference with his enjoyment of the easement.

Substantial interference with a right of way means “interference with its reasonable use

Question 63

Page v Convoy Investments

Answer 63

Substantial interference. Erection of electronically operated gates where there were previously no usable gates. If gate was always kept unlocked or at least unlocked at all times the dominant owner wants to use the right of way, this would not be substantial interference. Also not substantial interference if the gate is locked but the dominant owner is given a key. In Page v Convoy investments – held substantial interference because some drivers had to get out of the car to use the keypad (blocking the road).

Question 64

Celsteel Ltd v Alton House Holdings Ltd

Answer 64

The case concerned a right of way over a driveway past a petrol station to garages. The tenants of the petrol station proposed to erect a car wash which would reduce the width of the driveway by more than half for a certain distance. Access to the garages would be rendered difficult, though not impossible. However, it would prevent the tenant of one of the garages from reversing his car into the garage. Remember the test is not whether what is left is reasonable, the question is whether it interference with reasonable use of the right of way. It was reasonable that tenant would want to reverse into his garage. Therefore, narrowing of route so that he could no longer do it was a substantial interference of his reasonable use of the right of way. In addition, narrowing the route by more than half, materially detracted from the quality of the road.

Question 65

Emmett v Sisson

Answer 65

Right of way. Issue whether the dominant owners had a right to access their property along the whole length of the right of way. So to leave the right of way at any point. Held they did so building of a low wall even with gaps for access was substantial interference.

Question 66

Saint v Jenner

Answer 66

The case concerned a right of way along a lane. The land was over D’s land. The servient owners ran riding stables on their land. Having surfaced the lane, they found that vehicles were being driven along it too fast causing risk of damage or injury. They consequently installed speed ramps. Held: this was not a substantial interference, court held that they need to look at all the circumstances, including rights of others to use the right of way. The servient owners were entitled to use the right of way, and entitled to use it safely. Installation of speed ramps were not substantial interference. However, since the installation, the surface of track had deteriorated, there were now potholes. CA thought that combination of speed ramps and pot holes had become a substantial interference. Therefore, in servient owners wanted speed ramps to remain, they had to fill in the pot holes. Exception to the positive action rule of servient owner. Here because they carried out work with the speed ramps, they had to carry out repairs with the route.

Question 67

Moncrieff v Jamieson (HL).

Answer 67

The dominant land was a house in Shetland which was bounded by the sea and a cliff and to which the only access was down a stairway. The property had been bought for residential use (it was a derelict former shop), there was the express grant of a right of way, which was for vehicles and pedestrians, and it was not physically possible to park on the dominant land. Question was there were an ancillary right to park on the servient land. If there were no right to park the dominant owners would have had to park on the public road and then walk 150 yards – the route was steep, open and exposed. If no right to park on servient land only other place was to park on public road. Held: as ancillary to a right of way, there was a right to park on the servient land. Facts of the case were crucial.

However, clear from comments in HL that it was the unusual circumstances which led them to this conclusion, had property still been used for business purposes, it was likely the only ancillary right would be to load and unload, not to park permanently. Equally if property had not been in that situation, there would have been no right to park.

Question 68

St Edmundsbury and Ipswich Diocesan Board of Finance v Clark

Answer 68

There was an express right of way to a church over a strip of land which was part of the former rectory grounds. The question was whether it was for for pedestrians or vehicles. It had never been used for vehicles, vehicles would not be able to turn round, and there were gateposts in the way which would prevent any vehicle actually reaching the church or its path. In those circumstances, it was held that the right of way were for pedestrians only.

Question 69

McAdams Homes Ltd v Robinson

Answer 69

Changes in the use of the dominant land.

Two possible categories of changes

1) Intensify his use of land.
2) Change of use

Question 70

McAdams Homes Ltd v Robinson

Answer 70

The claimant was entitled to the benefit of an easement of drainage under the defendant’s property
The claimant demolished the bakery on his land and replaced it with multiple residential dwellings
The defendant blocked the drainage route.

Held: Having changed the character of his land, the claimant substantially increased the burden on the drainage system, suspending the easement

Question 71

Jelbert v Davis

Answer 71

An easement granted access to dominant land “at all times and for all purposes”
At the time of grant, the easement was used for agricultural purposes
The dominant land owner planned to redevelop his farm into a caravan site capable of sustaining 200 caravans at any one time.

Would this constitute substantial interference with the easement?

Held: Although access by caravans could not be prevented, the circumstantial impact of the intensification would be substantial, rendering the easement suspended
The court did not rule on how many caravan plots might constitute non-substantial interference

Question 72

Macepark (Whittlebury) Ltd v Sargeant).

Answer 72

An easement is only for the use of the dominant land (the rule in Harris v Flower) except where access to other land is only ancillary (i.e. insubstantial or of no benefit to that other land.

Question 73

Macepark (Whittlebury) Ltd v Sargeant

Answer 73

Cannot be used for adjoining land which dominant owner may own as well. To allow it to be used for other land as well could adversely affect the servient owner, dominant owner can pay to extend the right of way. Blanket rule no account taken if use of other land would increase the burden on the servient land. This rule prevents use of right of way to gain direct access to land which is not dominant land, prevents direct access to other land and use of right of way to reach dominant land and other land.

Question 74

Peacock v Custins

Answer 74

Farmer had benefit of right of way to field, A farmer wished to access another field through the field that was the dominant land. CA held the easement was not available. Cannot go through his one field to reach the other.

Question 75

Harris v Flower

Answer 75

Dominant owner owned two plots of land, right of way to one only, but erected A factory and warehouse partly on the dominant land and partly on other land. Held: he could not use right of way to access that building, because building was partly on land not the dominant land.

Question 76

Massey v Boulden

Answer 76

Two extra rooms had been built on adjoining land. Property was on dominant land but two extra rooms built on adjoining land. In Harris v Flower, the substantial property was on two different sites.

Question 77

Das v Linden Mews

Answer 77

Although this case agreed that easement must not be used to access non-dominant land, it suggested that non-benefitting land might create an exception to this rule.

Question 78

Wall v Collins

Answer 78

dominant owner brought extra land at the end of his garden upon which he built a garage. Using the right of way to drive to his garage was held ancillary. No mention of Das v Linden Mews so not clear how good the authority is.

Question 79

National Trust v White

Answer 79

The National Trust purchasedan Iron Age Hill Fort and permitted its visitors to park in a nearby car park. In order to park in the car park, visitors used a right of way granted in favour of the Hill Fort (archaeological site), not in favour of the car park. The servient land changed hands, and the owner objected to the visitors using the easement to access the non-dominant car park. Held: in the circumstances, the carpark was part of the parcel of the right of way. Because the only purpose of going to the carpark was to visit the hill fort. Car park was not used for other purposes, it was only parking to visit the hill fort.

Question 80

E.R. Ives Investment Ltd v High

Answer 80

D(iii) may not include an equitable easement created by a contract:

Question 81

Celsteel Ltd v Alton House Holdings

Answer 81

. equitable easements need protection on the Register by a notice unless they were overriding interests immediately before the 2002 Act came into force, in which case they retain that status: Sch 12 para 9. Equitable easements could be overriding under rule 258 of the Land Registration Rules 1925 if they were “openly exercised and enjoyed”

Question 82

Benn v Hardinge

Answer 82

an implied release where the conduct of the dominant owner shows a clear intention to abandon the easement (a long period of non-use is on its own insufficient:

Question 83

To make a legal easement

Answer 83

1) easement must be granted for a period equivalent to a fee simple absolute in possession or a term of years absolute. (s1(2) LPA.
1. 2) grant or reservation in a deed

2) easement must be created by grant or reservation (these two requires deed), by prescription or statute

Registered land
3) the express grant or reservation of a legal easement is a registrable disposition so requires registration s27(2)(d) LRA 2002.

Bind successors - Registered

4) Notice entered on the charges register of the servant land. Entry on the property register of dominant land
5) Override

Unregistered land
Legal easements - mutually enforceable
3) Equitable easements - Registered as Class D(iii) charge or C(iv) charge in certain situations.

If none of these are met, the easement can exist in equity only.

1) period equivalent to term of years
2) created by grant/reservation/prescription or statute
3) Registered.

Question 84

Does s62 operated where there is an equitable interest?

Answer 84

No - Borman v Griffith

Question 85

Platt Ltd v Crouch

Answer 85

Platt v Crouch essentially means that s62 can be used instead of Wheeldon v Burrows (as long as the right is continuous and apparent).. it is more advantageous, as there is then no need for the right to be necessary (In wheeldon, it has to be necessary). However, s62 ONLY applies to deeds, whereas wheeldon v burrows applies to deeds and contracts.

1) If you have diversity of ownership… apply Wheeldon v Burrows first. THEN apply s62 Platt v Crouch
2) If you have no diversity of ownership, apply s62 Platt v Crouch

Question 86

Does s62 apply to reservations?

Answer 86

No only grants

Question 87

s62 requires different ownership prior or wheeldon and burrows

Answer 87

s62 requires diversity of occupation of dominant and servient land prior to the relevant transaction. Wheeldon v Burrows only operates where there was previously common ownership

Question 88

Difference between wheeldon v burrows and s62

Answer 88

1) s62 - different ownership/same prior relevant transaction. Wheeldon v Burrows - same ownership
2) Wheeldon v Burrows = 3 requirements, s62 = 2.
3) s62 needs a deed, wheeldon v burrows needs deed or contract.

Therefore, no easements can be implied into contracts where is prior diversity of occupation.

Question 89

Adealon v Merton - implied reservation

Answer 89

Even where land was completely landlocked, court refused implied reservation because reservations should be expressly made.

Question 90

Wood v Waddington

CA

Answer 90

s62 can be used where there was prior to the conveyance (AND THERE MUST BE A CONVEYANCE), the land was under same occupation, IF it was continuous and apparent.

Where there was different ownership, all that is needed is actual use.

Question 91

Does s62 require conveyance?

Answer 91

yes,

wheeler v burrows, common intention/necessity does not.

Question 92

Who is covenantee/or

Answer 92

“covenantee” is the person in whose favour the promise is made and who therefore gets the benefit of the covenant.

“covenantor” is the person who makes the promise and is thus subject to the burden of the covenant.