Easements

Question 1

what is an easement?

Answer 1

a right over piece of land for benefit of another piece of land e.g right to store, right to light

it is a propritary interest that has legal capacity s 1 2 lpa 1925 where created approp

an easement gives either pos or neg, or less often, neg right of use over land of another the servient land which must be seen to benefit a dom piece of land

Question 2

ease in short?

Answer 2

easement is a property right which one land owener has over a certain land

Question 3

what about easement being prop rights?

Answer 3

Easements are property rights – generally rights of user, attached to and benefiting one piece of land (the dominant tenement) burdening another neighbouring piece of land (the servient tenement).

Question 4

what are easements normally?

Answer 4

Easements are normally positive, a right of landowner ( e.g freeholder) to do something on his neighbour’s (freeholder) land, i.e a limited right of user over neighbouring land.

Question 5

how it is stuck between tenements?

Answer 5

proeprityy quality- benefit of right becomes stuck to the dominant tenant and burden of that right becomes part of servient tenement

Question 6

what about when trasnferred?

Answer 6

each part of that land sold because- land title is sold the new purchaser is there to pick up benefit and burden of it, not just between the people= property right

Question 7

e.g of positive easements?

Answer 7

A landowner’s private right of way over neighbouring land (either on foot or by vehicle/vehicular access).
A landowner’s right to fix a signboard on a neighbour’s house, Re Webb’s Lease [1951] Ch 808, Moody v Steggles (1879) 12 ChD 261.
A landowner’s right to use a clothes line over neighbouring land, Drewell v Towler (1832) 3 B & Ad 735.

Property right which then bind future purchasers and pass land

Question 8

e.g of pos easements (2)?

Answer 8

A landowner’s right to go on to neighbouring land and open sluice gates, Simpson v Mayor of Godmanchester [1896] 1 Ch. 214.
A landowner’s right to store casks and trade produce on neighbouring land, AG Southern Nigeria v John Holt (Liverpool) Ltd [1915] AC 599.
A landowner’s right to use a neighbouring lavatory, Miller v Emcer Products Ltd [1956] Ch.304.

Question 9

e.g of pos (3)?

Answer 9

A landowner’s private right to ‘wander at will’ over neighbouring private land, Re Ellenborough Park [1956] Ch.131; Mulvaney v Gough [2002] EWCA Civ 1078
A landowner’s right to park his car anywhere in a defined area, Newman v Jones (unreported 1982 Megarry VC), London & Blenheim Estates v Ladbrooke [1992] 1 WLR 1278 and [1994] 1 WLR 31, see also, Copeland v Greenhalf [1952] Ch.488, Hair & Gillman v Inskip (2000) 80 P & CR 108, Moncrieff V Jamieson [2007] 1 WLR 2620 (HL) and Batchelor v Marlow (2001) P&CR

Question 10

e.g of pos (4)?

Answer 10

The reasonable enjoyment of the claimant’s right to park however must not impede the servient owner’s possession and control of his land, see Moncrieff v Jamieson (above).
Other common positive easements would be the right to install and operate gas, electricity and water ducts/pipes/cables etc over neighbouring land.
The right to install and operate an extractor fan/ventilation system has been held to be an easement, Wong v Beaumont Property Trust [1965] 1 QB 173.
An obligation by servient owner to provide electricity to dominant land from a private supply, where absence of easement would make land unusable where sold off, see Cardwell v Walker (2003).

Question 11

Limited Category of Negative Easements:?

Answer 11

The right to receive a reasonable quantum of light through a defined aperture, such as a window, skylight or greenhouse windows, see, Levet v Gas Light & Coke Co [1919] 1 Ch 24; Easton v Isted [1903] 1 Ch.405 and Allen v Greenwood [1098] Ch.119, respectively.

Question 12

what does reasonable quantum mean?

Answer 12

‘Reasonable quantum means ‘enough light …is left …for …the servient landowner’s enjoyment of the land…according to the ordinary notions of mankind for the comfortable use of the dwelling or beneficial use of the business premises’, Colls v Home and Colonial Stores Ltd [1904] AC 179 (HL).

Question 13

Rights not held to be Easements or which are ‘dubious?

Answer 13

No right to ‘Good View or Prospect’ over a Neighbour’s land, William Aldred’s Case (1610) 9 Co Rep 57b.
No right to receive radio or television signals across neighbouring land, Hunter v Canary Wharf [1997] A.C 655 (HL).
No right for a house to have protection from weathering by the continued existence of a neighbouring house, Phipps v Pears [1965] 1 QB 76, per Lord Denning CA.

Question 14

Essential Characteristics of an Easement?

Answer 14

Re Ellenborough Park [1956] Ch.131 (CA), per Danckwerts J:
For a right of user over neighbouring land to amount to an easement, as opposed to a general permission (licence), 4 criteria must be established:

Question 15

what is the 4 crtieria?

Answer 15

(i) There must be a Dominant and Servient Tenement- ben and burdern each side
(ii) The Dominant and Servient Owners must be different Persons-must be different people cant have easement in gross, you need separate parties,
(iii) The easement must ‘accommodate’ the Dominant Tenement-3-it must accomdate , right in question must benefit primarily the land not just the person, -s o must make land better too- whether right ben deom is qurstion of fact,enhancement to calue of lanf may be evidence of accom but is not by itself conclusive of fact, to accom the dom and serv must be sufficiently proximate to one another
(iv) The right claimed must ‘lie in grant’.

Question 16

(i) There must be a Dominant and Servient Tenement?

Answer 16

There must be 2 plots of land, one benefiting from the right (‘the dominant tenement’) the other (‘the servient tenement’), bearing the burden of the right.
An easement cannot exist in ‘gross’, i.e there must be two parcels of land, readily identifiable.

Question 17

(ii) The Dominant and Servient Owners must be Different Persons?

Answer 17

There must be separate ownership of the Dominant Tenement (DT) and the Servient Tenement (ST).

Question 18

(iii) ‘Accommodation’ of the Dominant Tenement?

Answer 18

The right claimed must in order to be an easement, confer an advantage upon the DT i.e the land itself, not just a personal privilege of advantage.
See, Hill v Tupper (1863) 2 H & C ; Moody v Steggles (1879) 12 Ch D.
There DT and ST must be sufficiently ‘propinquitous’ i.e physically close to each other, see, Bailey v Stephens (1862) 12 CBNS.

Hill v tupper land giving to put pleasure boats down and held that this right not a property right merely a licence didn’t add value to land just personal to land owner,cant of right away that’s far from eachother need to be neighbours

Question 19

(iv) The Easement must be Capable of Grant by Deed?

Answer 19

Every easement must be capable of being drawn up in a formal Deed of Grant, i.e the right must be capable of express creation by Deed as an easement.
The right to be an easement must be in the ‘list of conveyancing precedents’, accepted as an easement and capable of a formal Deed of Grant.

expressed grant ofdeed – must be pable of being drawn up by grant

Question 20

what about it being sufficiently cerrtain?

Answer 20

The right must be sufficiently certain to be an easement/not too vague, e.g no general right to receive an air flow, Harris v De Pinna [1886] 33 Ch.D, but acceptable if through a specific channel, e.g a ventilator Cable v Bryant [1908] 1 Ch.
Courts can and will create/recognise new easements as times change etc.

Question 21

what is profits a pendre?

Answer 21

A profit is a right to go on to land and take something from it, e.g cutting rights, fishing rights, rights to cut apples/fruit etc cut turfs. A profit can exist in gross, i.e the holder of the profit need not own land. The land affected by the profit is the servient tenement.

Question 22

what can both easements and profits be?

Answer 22

Both easements and profits can be registered against the burdened servient tenement. The holder of an easement will also have the benefit registered in favour of his land/title. When a purchaser then buys the servient land, he takes the land subject to the easement or profit.

Question 23

Types of Profits?

Answer 23

Profit of Piscary – Allows another to enter another’s land and to fish upon the same.
Profit of Turbary – Allows another to enter another’s land and to cut and take away turfs.
Profit of Estovers – Allows another to enter another’s land and cut and take away wood.
Profit of Grazing – Allows a person to graze his/her animals on another’s land.

Question 24

Creation of Easements?

Answer 24

Easements arise in three basic contexts:
By Grant – where one landowner (A) expressly or impliedly grants his neighbour (B) an easement over his (A’s) land. A being the servient tenement and B holding the dominant tenement.
By Reservation – where on a subdivision and sale of his land (B), expressly or impliedly reserves in his own favour over the bit of land sold off to A, an easement, e.g right of way/access.
Statute: Arising by way of Statute – rare.

Question 25

(A). GRANT?

Answer 25

(I) Express Grant
S.52 LPA – By Deed potentially creating a legal easement. By written contract (S.S.2 LP(MP) A 1989, creating an equitable easement.
Registration Requirements for new expressly created easements, i.e after 13.10.03 (post LRA 2002).
Old express easements, S.70(1)(a) LRA 1925, Schedule 12 para 9 LRA 2002.

Question 26

what is an implied grant?

Answer 26

(II) Implied Grant
Various form of implied grant of easements:
(a) Doctrine of Necessity
E.g where A’s land is landlocked, A can be granted an easement of access over his neighbour’s land (B), under the doctrine of necessity, see, Manjang v Drammeh (1990) 61 P & CR 194 and Nickerson v Barraclough [1981] Ch.426. V. narrow doctrine however.

Question 27

(b) Easements of Common Intention?

Answer 27

Whereas buyer and seller of land share an intention that the land should be used in a certain way, the courts may find for an implied easement, see, Pwlbach Colliery v Woodman [1915] AC (HL), Wong v Beaumont Property Trust (above).

Question 28

what are quasi easements? (implied grant)

Answer 28

(c) The Rule in Wheeldon v Burrows [1878] 12 Ch.D 31.

Where A sells part of his land, the buyer (B) of that part, picks up and gets the benefit of any rights over that land which A (Seller) was enjoying down to and at the time of sub-division and sale of that part to B.
Such rights are known as ‘quasi-easements’.

Question 29

WHAT will buyer b get?

Answer 29

The buyer B will be impliedly granted these rights, if such rights in relation to that part, were at all material times ‘continuous and apparent’ and were at all times ‘necessary [not essential] for the reasonable enjoyment of that part of the property sold off’.
See Millman v Ellis (1996) 71 P & CR 158 CA
Wheeler v J.J.Saunders [1996] Ch.19.

Question 30

where does the wheeldon also operate?

Answer 30

The Wheeldon v Burrows rule also operates where the original landowner grants the quasi-dominant part to X and at the same time, grants the quasi-servient part to Y, i.e where there is a simultaneous ‘double conveyance’ – it so operates to give X an easement over Y’s land, Hillman v Rogers (1998), Swansborough v Coventry (1832).

Question 31

what is s.62?

Answer 31

(III) S.62 LPA 1925

‘A conveyance of land shall be deemed to include and shall operate to convey with the land all buildings, erections, fixtures, commons, hedges ditches…liberties, privileges, easements, rights and advantages whatsoever, appertaining to the land…or at the time of conveyance …enjoyed with the land.’

Question 32

what else with s.62?

Answer 32

S.62 – Word saving provision in ‘conveyances’, which has effect of transferring with land when sold, all the benefits which are attached to the land at that time, see Campbell v Banks (2011)
It can be excluded by a ‘contrary intention’ in conveyancing documents.
Generally, it was thought that ‘prior diversity of occupation’ of dominant and servient tenements was required before the triggering conveyance kicked in S.62, see, Sovmots v SOS Env [1979] AC 144.

Question 33

what can s.62 do?

Answer 33

S.62 can upgrade and convert licences into easements. It thus has a ‘magical effect’, but only where there is a triggering ‘conveyance’.
See, Wright v Macadam [1949] 2 KB 744,
Goldberg v Edwards [1950] Ch.247
International Tea Stores v Hobbs [1903] 1 Ch 65,see L. Tee [1998] Conv.115.
P & S Platt v Crouch [2003] EWCA Civ 110 CA,
Sovmots Investments Ltd v SOS Env [1979] AC 144.

Question 34

s.62 views?

Answer 34

S.62 LPA and Wheeldon v Burrows Compared
Orthodox view suggests for S.62 to operate it is essential that there is prior separate occupation before the sale/ conveyance, i.e ‘prior diversity of occupation’. See Long v Gowlett (1923) and Sovmots v SOS Env. (1979).
Contemporary view is however that this prior diversity of occupation is not required for S.62 to operate, Platt v Crouch (2003), Campbell v Banks (2011).

Question 35

what happened in platt?

Answer 35

In Platt v Crouch, as an alternative to ‘prior diversity of occupation, the CA decided that S.62 will also operate provided that the alleged easements were ‘continuous and apparent’ prior to the ‘conveyance’ and it is only if such continuity and apparentness does not exist that ‘prior diversity of occupation’ comes into play.
If this analysis is correct there is much overlap with Wheeldon v Burrows orthodox doctrine of implied grant.

Question 36

how can easements also be granted/created?

Answer 36

(IV) PRESCRIPTION
Easements can sometimes be deemed as ‘granted’ , if such a recognised right is exercised by one landowner (A) over his neighbour’s (B’s) land, without B’s permission for a long enough period of time, typically 20 years minimum.
The long continuous use by A and/or his predecessor (s) in title, gives A a claim against B for an easement ‘by prescription’, i.e because of the ‘long use’, the law can ‘presume a grant’ of the easement in A’s favour.

Question 37

rationale behind prescrip?

Answer 37

The rationale behind the prescriptive acquisition of easements is the notion that long use of the ‘right’ by the owner of the dominant tenement gives rise to a presumption that a grant of the right was actually made, even though in reality no grant exists!

In this sense prescription is not adverse to the servient owner, as the fact of long use is taken to be conclusive evidence of the servient owner’s grant of the right.

Question 38

unlike adverse possesion?

Answer 38

Unlike with the adverse possession, the owner of the dominant tenement is taken to have acquired the easement through the acquiescence of the servient owner.
Hence unlike the law of adverse possession the effect of a successful prescriptive claim is to create a new right for the dominant tenement owner not merely to extinguish the rights of the owner on whose land the long use occurs.
Hence often the law of prescription is sometimes referred to as the law of presumed grant – presumed grant from long use.

Question 39

R v Oxfordshire County Council ex parte Sunningwell P.C (2000) lord hoff?

Answer 39

Lord Hoffman noted:

‘…any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment’…

Question 40

prescription rules?

Answer 40

(a) Common Law Prescription
(b) Lost Modern Grant
(c) Prescription Act 1832

Question 41

what are the req of prescription?

Answer 41

Any claim to a prescriptive easement
must be:

‘Nec Clam’ – without stealth/secrecy
‘Nec Vi’ – without force
‘Nec Precario’ – without permission

Further the claim for such an easement can only be claimed for benefit of freehold title Kilgour v Gades [1904] 1 KB 457; Gayford v Moffat [1868] 4 Ch.

Question 42

User Must be ‘of Right’ so as to Presume a Grant ?

Answer 42

This means the dominant tenement owner’s use of the servient land must be in the character of a use as of right and not explicable for any other reason.
In Odey v Barber (2007) a claim to a prescriptive easement (right of way over neighbouring land) failed as it was shown that ‘permission’ had been given for the same. User was not ‘of right’, contrast London Tara Hotel v Kensington Close Hotel (2010).

Question 43

Nec Clam’ - Use without Secrecy?

Answer 43

No easement can be acquired by prescription unless it arises in circumstances in which a grant can be presumed.
Thus a secret hidden use by the owner of the alleged dominant tenement is not sufficient and will not count – as a ‘presumed grant’ presumes a degree of ‘awareness’ on the part of the servient owner. The long use must therefore be open, Union Lighterage v London Graving Dock (1902).

Question 44

Nec Vi – Without Force?

Answer 44

No easement can be acquired by prescription if the owner of the alleged dominant tenement must use ‘force’ to accomplish the use, e.g smashing down a fence or breaking the lock of a gate so as to use a pathway etc.

Question 45

Nec Precario – Without Permission?

Answer 45

Easement acquired by prescription are based on the presumed grant of the same.
Crucial therefore is the servient owner’s acknowledgment of the dominant tenement owner’s ‘right’ to the use, not the servient owner’s consent to it.
The servient must acquiesce in the right (go along with it) not give his express of implied permission. (Consent would imply the dominant owner has no right as such).

Question 46

thus with nec precario?

Answer 46

Thus evidence that the alleged servient owner has consented to the use perhaps by giving a licence, will bar a prescriptive claim, see Hill v Rosser (1997) and Odey v Barber (2007).

The line between acquiescence and consent is a thin one however!
Generally mere knowledge by the servient owner of the use does not amount to implied consent, see Mills v Silver (1991).

Question 47

checklist for without consent?

Answer 47

A Checklist for determining whether the use has been without consent, but with acquiescence, so as to generate a prescriptive easement can be found in judgment of Fry J in Dalton v Angus (1881):
(i) Is there a use of the servient owner’s land ?
(ii) Is there an absence of a strict right to carry on the use ?
(iii) Does the servient owner have knowledge (actual or constructive) of the use?
(iv) Does the servient owner have the ability to stop the use, either practically or legally ?
(v) Has the servient owner abstained from stopping the use for the period required for a successful prescriptive claim?
Positive answer to all these questions will mean a prescriptive claim will probably succeed.

Question 48

added info of easements by prescrip?

Answer 48

*N:B Easements by prescription can only arise through the requisite long use where the right claimed can actually amount to an easement, e.g it fulfills the Re Ellenborough criteria, e.g right of way but not right to a good view!

Question 49

Use Must be Lawful?

Answer 49

Long use may mature into an easement by prescription only if the use itself is lawful. Generally easements cannot exist for unlawful purposes hence no servient owner can presumed to have granted one!
However in Bakewell Management Ltd v Brandwood (2004) a question arose whether the defendants had acquired by prescription a vehicular right of way over common land.

Question 50

what abotu charging fee?

Answer 50

If no Bakewell as land owners could charge a fee, if no they could not. S.14(1) Road Traffic Act 1930 & S.193(4) LPA stated that a [person who drives a vehicle on common land without lawful authority commits a criminal offence, as argued by Bakewell. HL however upheld the prescriptive grant of the easement of vehicular access as easement was not ‘substantively and inherently unlawful’ but had become lawful by reason of the very facts that required an easement to be granted.

Question 51

Prescription Periods?- three modes of prescription?

Answer 51

(a) Common Law Prescription
To claim an easement through common law prescription it must be shown that the right has been enjoyed as of right since ‘time immemorial’. The time of legal memory runs from 1189, by virtue of Statute of Westminster 1275.
Courts will presume user has been since 1189 if proof of enjoyment is as far back as 20 years.
Presumption is rebuttable however if it can be shown that the right could not have been enjoyed from 1189, e.g buildings did not exist then etc. Very easy to disprove claim here!

(b) Lost Modern Grant
Due to difficulty of claiming an easement at common law, courts developed the ‘fiction’ of Lost Modern Grant.
Any 20 year period of continuous user, raises the notion that the easement is being exercised as the result of an express Deed of Grant and the Deed has been ‘lost’, Bryant v Foot (1876) LR 2 QB 161; Dalton v Angus (1881) 6 App.Cas 740; Tehidy Minerals v Norman [1971] 2 QB 528; Samuel v Fatih & Fatih (2000)(CA).

(c) Prescription Act 1832
Act operates in tandem with common law doctrines.
Badly drafted !
(i) Easements other than light
20 or 40 years continuous user ‘next before action’ i.e when litigation started/proceedings issued.
No interruption in user, except interruption up to 364 days maximum can be ignored, as long as the claim is brought immediately thereafter.

Question 52

time periods s.2?

Answer 52

(ii) Time periods (S.2) :
40 years continuous user ‘next before action’ – claim can only be defeated by written consent on part of servient owner.
20 years continuous user ‘next before action’ – claim can be defeated by oral consent on part of servient owner

Question 53

what about easements of light?

Answer 53

(iii) Easements of Light
S.3. 20 years ‘next before action’ required. Can only be defeated by evidence of written permission of servient owner. Interruptions – Right to Lights Act 1959:Registration of ‘Notional Obstruction’.

Question 54

). RESERVATION?

Answer 54

E.g Where A own freehold to Plot and sells off a section to B. A then wishes to reserve in his own favour rights over the sold land, against B.

(a) Express Reservation
S.52 LPA. Such easements should be expressly set out in Deed of Transfer/Conveyance. Ray v Hazeldine [1902] 2 Ch.17, effect is re-grant or express ‘grant back’ S.65 LPA.

Question 55

what is implied reservation?

Answer 55

(b) Implied Reservation:

(i) ‘Necessity’
In rare cases, where land of A is landlocked, (as he has sold off section to B and forgot to expressly reserve a right of way to himself over B’s land to main road), the courts can imply an easement of necessity, Pinnington v Galland (1853) 9 Exch.1. L. Crabb [1981] Conv. 442.

(ii) ‘Common Intention’

Very strong evidence of a mutual intention of the parties to reserve an easement – hard to prove, see Peckham v Ellison (1998) 31 HLR 1031.

Question 56

Extinguishment of Easements?

Answer 56

Vital to the existence of an easement is the idea that dominant and servient tenements are in separate ownership or occupation.
Where the dominant and servient land come into the same ownership and possession by one person, the easement ends, through what is called ‘Unity of Seisin’.
Both unity of ownership AND possession is required here. (Thus a tenant can enjoy an easement against his tenant and vice versa).

Question 57

easements can be terminated also?

Answer 57

Easements can be terminated by an expressly agreed Deed of Release signed by the Dominant Owner (with or without consideration), or by an Act of Parliament on occasion.
Proprietary estoppel might render an easement unenforceable.
Mere non-use in itself does not terminate an easement, see Benn v Hardinge (1992), non-use of an easement for some 160 years held insufficient to show an intention to abandon the same!

Question 58

LAW REFORM OF EASEMENTS?

Answer 58

June 2011 the Law Commission published its final report on Making Land Work: Easements, Covenants and Profits a Prendre, Law Com No.327 .
Most of this report deals with reforming the law of Freehold Covenants

Question 59

modest reform is ?

Answer 59

Modest Reform is proposed of the Law Relating to Easements and Profits
Main Proposals:
Abolition of existing methods of prescription and their replacement with a single statutory method;
Rationalisation of the law on extinguishment including the establishment of a statutory jurisdiction to discharge or modify easements and profits similar to that which exists in relation to freehold covenants;

Question 60

Acceptance of the notion that an easement could still exist where the dominant and servient land was owned by the same person provided the benefit and burden of the easement had been registered;?

Answer 60

Acceptance of the notion that an easement could still exist where the dominant and servient land was owned by the same person provided the benefit and burden of the easement had been registered;
Abolition of the rules on implied creation of easements and replacing them with a single statutory rule based on what is necessary for the reasonable use of the land. This would entail disapplying S.62 LPA and removing the ouster principle in easements so that easements could exist even if they deprived the servient owner much of his land use.

Question 61

enforcement of easement before term? reg land and unreg land?

Answer 61

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Question 62

remedies of easements?

Answer 62

-

Question 63

damages of easements?

Answer 63

-

Question 64

injunction of easements?

Answer 64

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