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Easements Flashcards

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1
Q

What is an easement?

A

A right over one piece of land for the benefit of another piece of land
A proprietary interest that has legal capacity (s.1(2) LPA 1925) where created appropriately

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2
Q

What are the four requirements for an easement and what is the authority for this?

A

Re Ellenborough Park [1956]:

  1. There must be a dominant and servient tenement
  2. The right must accommodate the dominant tenement
  3. The owners of the two tenements must be different people
  4. The right claimed must be capable of being the subject matter of a grant
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3
Q

What does it mean for the right to be capable of forming the subject matter of a grant and why is it important?

A

It means that it must be capable of being granted by deed. Important since easement is right capable of existing at law.

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4
Q

Which land gets the benefit of an easement?

A

The dominant tenement

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5
Q

Which land is burdened by an easement?

A

The servient tenement

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6
Q

Which case established that the DT and ST must be defined at the time of acquisition of an easement and that easements over land that could be owned in the future are not valid?

A

London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994]

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7
Q

Why does there need to be a DT and a ST for an easement?

A

Because easements cannot exist in gross - they must attach to land because easements are for the benefit of the land

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8
Q

What does it mean to say that the right must accommodate the DT?

A

The right must make the land a better and more convenient property

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9
Q

What was held in the case of Moody v Steggles [1879]?

A

Advertising a pub’s location on neighbouring land was accepted as an easement. It benefitted the land, as the business use had become the normal use of the land.

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10
Q

What did the case of Hill v Tupper (1863) establish?

A

The right to set up a commercial monopoly of putting boats on the canal was rejected as an easement.

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11
Q

What did the case of Platt v Crouch [2003] hold?

A

An easement to moor boats was allowed. The benefit of the easement was held to attach to the business/land (hotel)

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12
Q

Why is there a distinction between the ruling of Moody v Steggles [1879] and Hill v Tupper (1863) concerning the benefit to the land?

A

In Hill the commercial advantage to exclusively put boats on the canal would have been useful and valuable without owning the adjacent land, but in Moody the advertisement benefitted the land as using it as a pub had become the normal use of the land.

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13
Q

Which case is authority for the fact that you cannot have an easement over your own land?

A

Roe v Siddons (1888)

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14
Q

Why do the owners of the DT and ST have to be two different people?

A

Because you cannot have an easement over your own land - this amounts to a quasi easement.

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15
Q

What are the three sub-requirements for the fact that an easement right must be capable of forming the subject matter of a grant?

A
  1. There must be a capable grantor and capable grantee
  2. The right must be sufficiently definite
  3. The right claimed must be in the general nature of recognised easements
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16
Q

If you have a licence can you grant an easement? If you have a term of years how long can you grant an easement for?

A

No.

No longer than the length of your lease.

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17
Q

Which case established that rights which require subjective intention may be deemed too uncertain to be an easement? What did the case concern?

A

William Aldred’s case (1610)

Concerned a scenic view

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18
Q

Which case established that there is no general right to air and that rights of light, water, air, passage etc should be through defined channels?

A

Harris v De Pinna (1886)

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19
Q

Which case held that there is no right to receive television signal as an easement?

A

Hunter v Canary Wharf [1997]

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20
Q

In which case was the court unwilling to recognise new negative easements beyond the two already accepted?

A

Re Ellenborough Park [1956]

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21
Q

What are the two negative easements that the courts have already recognised?

A

Right to light - enshrined in statute and common law

Right to structural support from adjoining buildings

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22
Q

What happened in Phipps v Pears [1956]?

A

The right to have protection from weathering from neighbouring property (where external wall not connected) was rejected.

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23
Q

Even when the right satisfies the four Re Ellenborough Park [1956] requirements, it may still be rejected as an easement if it:

A

(A) requires expenditure by the servient owner

(B) is too extensive

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24
Q

Which case is authority for the fact that an easement cannot require positive action or expenditure from the servient owner? What did the case concern?

A

Rance v Elvin (1985)

No easement to install and provide a water supply, but would be permissible easement if water was already supplied.

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25
Q

Which case & situation is the exception to the rule that an easement cannot require positive action or expenditure from the servient owner?

A

Crow v Wood [1971]
Where the owner of the ST grants an easement to someone who keeps livestock, the owner of the ST has the duty to maintain fences and walls.

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26
Q

Which case established that easements must not leave the servient owner without any reasonable use of the land - the “ouster principle”? What did the case concern and what are the memorable quotes?

A

Copeland v Greenhalf [1952]
Concerned storing vehicles on strip of land.
Upjohn, J - ‘virtually a claim to exclusive possession’ ‘claiming the whole beneficial user’

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27
Q

What happened in Batchelor v Marlow [2001] and what did the court hold?

A

Use of verge for parking during daytime hours.

CA held no easement as owner left with no reasonable use of the verge.

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28
Q

What happened in Wright v McAdam [1949] and what did the court hold?

A

Storing of coal in shed held to be valid easement. Reasoning based on the fact that small proportion of ST/shed used for storage.

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29
Q

In which case did Judge Paul Baker consider that assessing whether the right claimed was too extensive was “the essential question is one of degree”? What did the case concern?

A

London and Blenheim Estates v Ladbroke Retail Parks [1992]

Concerned parking five cars during daytime hours on strip of land.

30
Q

What did the court hold in Mulvaney v Gough [2002]?

A

The Cs had right to cultivate land through an easement but was not specific to part of the land.

31
Q

What was the test for assessing extensive rights claimed in Moncrieff v Jameson [2007] and what did the case concern?

A

Lord Scott: whether the exercise of the right would leave the servient owner in ‘possession and control’ of the servient land
Case concerned parking of car where not possible to use car to access land as Scottish isle.

32
Q

What happened in Virdi v Chana [2008]?

A

High Court case concerning parking where the judge followed the Batchelor v Marlow ‘reasonable use’ test, considering self not bound by the test advocated in Moncrieff.

33
Q

What happened in Grisgby v Melville [1972] and what did the case concern?

A

Concerned right to store goods in a cellar. Was not held to be an easement as amounted to exclusive possession.
Justice Brightman also referred to inconsistency between Copeland and Wright suggesting that the question is one of degree.

34
Q

What did the High Court confirm in Kettel & Ors v Bloomfeld Ltd [2012]?

A

That it was bound by Batchelor v Marlow, but adopted a ‘reasonable use’ test that appeared to have similarities with that of ‘possession and control’ thus blurring the lines further.

35
Q

What is the distinction between granting and reserving easements?

A

Grant - when you give an easement to someone over your land

Reserve - when you reserve an easement for yourself over land that you transfer to someone else

36
Q

What are the three methods of expressly granting or reserving an easement?

A

(1) Grant of easement unconnected with sale of part
(2) Grant of easement on sale of part
(3) Reservation of an easement on sale of part

37
Q

What is the difference between creating an implied easement out of necessity and one out of common intention?

A

An easement will be implied by way of necessity where it is essential for any use of the land to be enjoyed. An easement will be implied out of common intention where it is essential for the land to be enjoyed for the specific purpose which the parties have mutually intended.

38
Q

What is the authority for the fact that easements are capable of existing at law?

A

s.1(2) LPA 1925

39
Q

To be a legal easement what must be done? What are the authorities for this?

A

The easement must be made by deed - s.52(1) LPA 1925

If easement is created expressly then it must be registered to take effect at law - s.27(1) and (2) LRA 2002

40
Q

What are the circumstances in which an equitable easement will arise?

A

(1) Grantor only holds an equitable estate in land
(2) Duration is not for the required term (not equivalent to estate in land)
(3) Easement not created by deed but there is an enforceable contract for the creation of an easement - Walsh v Lonsdale
(4) Easement has not been registered against ST’s registered title and DT’s registered title (if any)

41
Q

Why does an implied easement of necessity arise?

A

The easement claimed is necessary to the use of the land

42
Q

Which case held that an access point to the land from river meant there was no easement of necessity implied?

A

Manjang v Drammeh [1990]

43
Q

What did the court hold in Titchmarsh v Royston Water Co. (1899)?

A

No implied easement of necessity as still able to access land another way but was harder.

44
Q

What did the court consider in Sweet v Sommer [2004] in relation to implied easements of necessity?

A

The method of access as well as ability to access. Considered ability to walk and drive over another’s land even though not technically landlocked.

45
Q

In which case did the Court consider that a contextual approach to implied easements for common intention was necessary? What did the facts concern?

A

Sweet v Sommer [2004]
Concerned vehicular access to property over right of way as otherwise vehicular access would require demolishing workshop and would be excessive.

46
Q

In which case did the court imply an easement due to common intention because the lease granted was specifically for the purpose of running a Chinese restaurant and required the lessee to comply with health and safety regulations so easement to erect ventilation system implied?

A

Wong v Beaumont Property Trust Ltd [1965]

47
Q

In which case did the court interpret an easement for all purposes for use and enjoyment of the land to include a right to dig up the land to connect to the utilities system?

A

Donovan v Rana [2014]

48
Q

What are the requirements for implied easements to operate under the Wheeldon v Burrows rule?

A

(1) Must be concerned with a grant not a reservation
(2) Easement must be continuous and apparent
(3) Easement must be necessary for the reasonable or convenient enjoyment of the dominant land.

49
Q

When does the rule in Wheeldon v Burrows operate?

A

When land previously owned by one person and operation of quasi-easement but land subsequently sub-divided and relates to grant of easement to purchaser.

50
Q

In which case did an implied easement under Wheeldon v Burrows fail as there was an alternative route to access the land that was realistically available although less convenient?

A

Wheeler v Saunders [1995]

51
Q

What were the facts and the ruling in Milman v Ellis [1996]?

A

Access to house via layby route but land sold and layby not. Layby exit made access safer and easier so court held that implied easement under Wheeldon v Burrows rule.

52
Q

How does s.62 LPA 1925 operate?

A

It implies an easement that are already existing into a conveyance.

53
Q

What is the benefit of s.62 LPA 1925 that allows it to upgrade rights?

A

s.62(1) provides the opportunity to convert liberties, privileges, rights and advantages to easements. So it can allow one to upgrade a personal right (i.e. licence) to a property right where there is a conveyance

54
Q

What are the requirements for s.62 LPA 1925 to operate?

A

(1) right capable of being an easement
(2) competent grantor
(3) Conveyance - defined in s.205 LPA 1925 [transfer of fee simple or granting of legal lease]
(4) Prior diversity of ownership/occupation or evidence that right was continuous and apparent

55
Q

Which cases illustrate the power of s.62 LPA 1925 to upgrade personal rights to proprietary rights? What were the facts?

A

International Tea Stores Co v Hobbs [1903] - simple licence to cross property upgraded to easement when conveyed remaining portion of the lease
Wright v Macadam [1949] - lease for flat renewed by deed and so s.62 had consequence of including right to store coal in shed too

56
Q

Which case held that an implied easement to cross a river failed under s.62 as lacked diversity of ownership as both plots previously had same owner?

A

Long v Gowlett [1923]

57
Q

What was the ruling in Sovmots v Secretary of State for the Environment [1979]?

A

Prior diversity of occupation would be acceptable as well as prior diversity of ownership for an implied easement under s.62 LPA 1925.

58
Q

What was the ruling in P&S Platt v Crouch [2003] concerning implied easements under s.62 LPA 1925?

A

CA established that was not necessary to establish prior diversity of ownership under s.62 LPA 1925 where could show that the right in question was continuous and apparent

59
Q

Which case recently endorsed the Platt v Crouch approach to diversity of ownership (that it is not a strict requirement) under implied easements from s.62 LPA 1925?

A

Wood v Waddington [2015]

60
Q

What do you need to have a legal easement?

A
  • created by a competent grantor
  • created by deed (s.52 LPA 1925 - requirements of deed in s.1 LP(MP)A 1989)
  • equivalent in duration to one of the legal estates in land (s.1(2)(a) LPA 1925
  • where expressly acquired (by grant or reservation) in registered land, must be registered in accordance with s.27(2)(d) LRA 2002
61
Q

When do you have an equitable easement?

A
  • created merely in compliance with s.53(1)(a) LPA 1925
  • created merely by an equitable estate owner
  • an attempt to create a legal easement fails to meet all legal formalities, provided that this amounts to a valid contract (s.2 LP(MP)A 1989) that is specifically enforceable (Walsh v Lonsdale)
62
Q

Where you have an expressly acquired legal easement in registered land what do you have to do to make it binding?

A
  • register it (s.27(2)(d) LRA 2002)

- puts notice on the charges register of servient land to make binding (s.38 LRA 2002)

63
Q

What do you have to do to make a legal easement that has been impliedly acquired in registered land binding?

A

Amounts to an overriding interest under Sch 3 para 3 LRA 2002 so binding provided that the right was either:

  • actually known to the purchaser
  • would have been obvious upon reasonably careful inspection of the land or
  • exercised within one year prior to the disposition
64
Q

What do you have to do with an equitable easement in registered land to make it binding?

A

Enter as a notice on the charges register of the servient land (s.32 LRA 2002) so it will be binding on third parties.
If no entry is present then the easement will not bind a purchaser for valuable consideration under s.29 LRA 2002.

65
Q

Do you need to do anything to a legal easement in unregistered land to bind third parties?

A

No - legal rights in unregistered land bind the whole world.

66
Q

What do you need to do with an equitable easement in unregistered land to make it binding on third parties?

A

Register it as a Class D(iii) land charge so that it will be binding under s.198 LPA 1925

67
Q

If you do not register an equitable easement in unregistered land will it bind a purchaser of a legal estate for money’s worth? What is the authority for this?

A

No - s.4(6) Land Charges Act 1972

68
Q

What is the view of A. Hill-Smith (2007) concerning the ouster principle in car parking cases?

A
  • difficult to apply, when do the rights become too extensive?
  • argues that ouster principle should only come into effect where the party claiming an easement is claiming unrestricted right to use the land as it wished
69
Q

What is the view of A. Goymour (2008) concerning the possession and control test in car parking cases?

A

The possession and control test from Moncrieff v Jamieson [2007] is to be welcomed as:

(1) offers clarity
(2) eliminates difficult distinctions e.g. Spatial and temporal limits

70
Q

What is the view of M. Haley (2008) concerning the possession and control test in car parking cases?

A
  • the boundary between exclusive use as of right and exclusionary use that is merely incidental to the exercise of a particular right remains as elusive as ever
  • the possession and control test leaves open the possibility that a rather than having a licence where park car in allotted bay, you could have an easement instead giving a proprietary right
71
Q

What are the three main points from the Law Commission’s Report No.327 (2011) on easements?

A
  • s.62 LPA 1925 should not be able to upgrade benefits into legal easements
  • recommends replacing methods with one that implies easement where it is ‘necessary for the reasonable use of the land’
  • ouster principle should be abolished - easements that confer exclusive right to park should be valid provided the servient owner can access the land (to however a limited extend)

Land Law (4 decks)

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