Easements Flashcards
“Easement”
proprietary right, capable of binding a new owner - very specific single purpose rights
s. 1(2)(a) LPA 1925
easement = proprietary right: capable of being legal if it is for a fixed amount of time or effectively forever and created by deed
s. 3 LPA 1925
An easement that is not legal can still be a proprietary right, but will operate as an equitable easement
Legal vs. equitable easements
Ability to bind a 3rd party
LE: if it appears on the register or under certain circumstances as an overriding interest, it will be capable of binding a 3rd party
EE: must be entered on the register as a notice to bind a 3rd party and especially since LRA 2002 - if not will not operate as an overriding interest
Schedules 1 and 3, para. 3 (LRA 2002)
Refers specifically to IMPLIED LEGAL easements as being capable of overriding
s. 27 LRA 2002 - Why are only IMPLIED LEGAL easements capable of overriding?
Express easements created by deed must be registered or they remain equitable - equitable easements are not binding unless they appear on the register
Re Ellenborough Park: Criteria for an easement
- There must be a dominant and servient tenement
- The easement must “accommodate” the dominant tenement (Lord Evershed)
- The two plots must be owned or occupied by different people
- Easement must “lie in grant” (i.e. right must be capable of “forming the subject matter of the grant” )
Ackroyd v Smith
An easement cannot exist “in gross” –> it cannot exist without an estate in land to which the easement is connected
Banstead Downs Golf Club v Customs and Exercise
There was no easement for a member of the gold club to play golf on the club’s course, there was no estate to which an easement could have been connected –>purely personal
London and Blenheim Estates v Ladbroke Retail Parks
The dominant and servient tenements must be identifiable at the time of the grant - here, there was no dominant land at the time the easement was granted –> no easement
London and Blenheim Estates v Ladbroke Retail Parks
The dominant and servient tenements must be identifiable at the time of the grant - here, there was no dominant land at the time the easement was granted –> no easement
HOWEVER: stated that a non-specific parking space was capable of being an easement
Bailey v Stephens
One property in Northumberland and one in Kent was not sufficiently close –> no easement
Hill v Tupper
Purely personal benefit to the owner of a pleasure boat business to run canal boats done a river (Pollock CB: simply a licence!)
Hill v Tupper
Purely personal benefit to the owner of a pleasure boat business to run canal boats down a river (Pollock CB: simply a licence!)
Roe v Siddons
The dominant and servient plot must be owned or occupied by different people
Borman v Griffith
Different ownership can mean that both plots can be owned freehold by one person, provided that one of the plots has a tenant who owns the leasehold estate
- Re Ellenborough criteria: right alleged must be “capable of forming the subject matter of the grant”
Lord Evershed’s “sub-rules”:
i. capable grantor and grantee
ii. sufficiently certain
iii. no positive expenditure
iv. no exclusive use by the dominant land
“capable of firming the subject matter of the grant”
i. capable grantor and grantee
Two persons with legal titles (e.g. if one of them has a licence, the right is not capable of being an easement)
“capable of firming the subject matter of the grant”
ii. sufficiently certain
traditionally, an easement needed to be written on a deed and be clear in term –> common law developed with this in mind
Phipps v Pears
“Protection against the weather” was too vague
Rees v Skerrett
There can be an easement of “support” from an adjacent property (where demolition of adjoining wall would cause destruction)
Webb v Bird
There is no easement of air per se, but there can be an easement of air through a defined channel
Colls v Home and Colonial Stores
There is no easement of light per se, but there can be an easement of of light through a specific window
Hunter v Canary Wharf
No easement of television signals (Hunter’s enjoyment of her tele was affected by the Canary Wharf tower building)
Dixon: might have been decided differently if TV signals were entering through a defined fibre-optic cable rather than through the traditional aerial
Browne v Flower
Right to privacy is not capable of being an easement
Lawrence v Fen Tigers
No easement of either “noise” or “silence”
Dyce v Lady James Hay
Suggested that easements must alter and expand with the changes of mankind, however the categories of easements have been relatively restricted through the development of the common law
Less restricted definitions of “easements”
Miller v Emcer: easement to use the lavatory
Wright v Macadam: easement of storage
“capable of firming the subject matter of the grant”
iii. no positive expenditure
There should be no positive expenditure on part of the servient tenement - policy reasons
Regis v Redman
No positive expenditure on part of the servient land - unfair to grant easement and then pay for its upkeep as well
Crow v Wood
Lord Denning found an easement for the maintenance of a boundary fence (even though expenditure by servant land) - trying to avoid a positive covenant which would not be binding on a 3rd party
“capable of firming the subject matter of the grant”
iv. no exclusive use by the dominant land
Grigsby v Melville: dominant tenement owner had exclusive use over the cellar space - there cannot be an easement that leads to a general exclusion of the servient tenement owner
Wright v Macadam: there can be an easement of space such as that of a cellar for storage of coal
Copeland v Greenhalf
The right to park here was extensive and almost exclusive –> no easement
Newman v Jones || Batchelor v Marlow
The more exclusive the use of the servient tenement, the less likely it is that the right will be seen as an easement
Reilly v Booth
Easement = use of another’s land NOT OWNERSHIP of that land
Street v Mountford: exclusive possession, for a term at a rent –> lease rather than easement
s. 52(1) LPA 1925
If created by deed, an easement can be a legal easement, provided it is for a period equivalent to a freehold or leasehold estate (s. 1(2) LPA 1925)
Ways to create an implied easement (deemed by the law as being legal rather than equitable)
1) Necessity
2) Common intention
3) Rule in Wheeldon v Burrows
4) s. 62 LPA 1925
5) Prescription
equitable easements (created in writing and not by deed or implied): binding?
must appear as a notice in the charges section of the register to bind 3rd parties
legal easements: binding?
under the provisions of s. 27 LRA 2002
implied easements: binding?
might bind as overriding interests under paragraph 3 of Schedules 1 and 3 LRA 2002
“implied reservation”
Re Dodd: courts have been more reluctant to allow such an easement to succeed - here, an implied reservation of a right across the conveyed land was unsuccessful because for convenience NOT necessity
“Necessity”
without the benefit of the easement, the land would be useless or impossible to use
Hillman v Rogers
Although it is technically possible to exclude easements by necessity through express words in a conveyance, the courts will analyse such a conveyance and allow an easement if the facts dictate that it is really necessary
Re Dodd
Easier to claim the grant of an easement than a reservation
Manjang v Drammeh
Despite Re Dodd, Lord Oliver stated it is possible to imply the reservation of an easement of necessity but if there is any other access route (even access by water like here - land locked) the claim fails as it did here
Wong v Beaumont
Implied grant of an easement of necessity: easement of ventilation shaft over seller’s land as the land conveyed for the purpose of a restaurant would have been rendered useless without
ALSO argued successfully implied easement of common intention
Pwllbach Colliery v Woodman
the law will readily imply the grant or reservation of an easement of common intention where the facts suggest that it was the intention of both parties that an easement should exist
Stafford v Lee
Nourse LJ: common intention will be established where there is evidence that the parties are aware that the land is being used for a particular purpose and the easement would be necessary to give effect to that intention
Common intention argument in Wong
Beaumont must have intended that there be an easement of ventilation as without it there would have been a breach of health and safety law
Wheeldon and s. 62 methods of implied easements
these can only be used to claim a grant not a reservation of an implied easement
Wheeldon v Burrows
On a grant of land, the grantee (e.g. the buyer) will acquire, by implication, all easement which:
1) are continuous and apparent
2) have been and are at the time of the grant used by the grantor for the benefit of the land
Thesiger LJ: “quasi-easements” as an owner cannot have a full easement over their own land
Hansford v Jago
Application of the rule in Wheeldon: rough track used by the original owner over the part of the land now sold/leased - permanent and obvious and necessary for the enjoyment of the land by the new owner
Ward v Kirk
defined “continuous and apparent” under the rule in Wheeldon - would be seen on inspection and is neither transitory nor intermittent
The rule in Wheeldon - “necessary”
does not mean absolute necessity as in implied easements of necessity
s. 62 LPA 1925
“A CONVEYANCE of land shall be deemed to include all liberties, privileges, EASEMENTS, rights and advantages”
–> applies only i relation to grants NOT reservations
Hair v Gillman
Even a personal right such as a licence may become an easement through s. 62 if the conditions are satisfied
Platt v Crouch
Diversity of occupation no longer needed where the use of an easement is “continuous and apparent” - Gibson LJ - it didn’t matter that prior to the sale of the hotel there was no diversity of occupation, the easement was continuous and apparent and reasonably necessary because it was a hotel
Wood v Waddington
Alongside with Gibson LJ seems to align the rule in Wheeldon with the rule in s. 62, blurring the traditional distinction (prior diversity of ownership)
Academic support from Megarry and Wade
Easements by prescription
(Often of lights): where there is long use of the right (20 years) - must be of right (without secrecy, force or permission), between freeholders and the use must have been continuous and uninterrupted
Prescription Act 1832
s. 27 LRA 2002: compulsory registration
Any expressly granted easements are subject to compulsory registration, until this happens the easement remains equitable in nature
Schedules 1 and 3, para. 3
Implied legal easement may be binding as an overriding interest if either
a) it is in the actual knowledge of the new owner
b) it is reasonably obvious on careful inspection
c) person claiming benefit can demonstrate they used the easement within the last year leading up to the sale
Extinguish easement through express release
both parties agree to terminate easement
Extinguish easement through implied release
needs abandonment
Benn v Hardinge
Non-usement of easement for 175 years might not be enough to extinguish easement through implied release
Huckvale v Aegean Hotels
Easement may be terminated if the land returns to sole ownership or the benefit is lost due to change of circumstances
easements vs. covenants: termination
Easements cannot be terminated though an application to the Lands Tribunal under s. 84 LPA 1925 as can be the method with restrictive covenants - cannot ask for an easement to be misapplied by the courts
Law Commission Report No 327 (2011)
Parliament should legislate to simplify and codify the law on easements (and covenants)
“Getting rid of an easement”
excessive use for benefit of dominant land –> restored to nod-excessive use (Giles v Tarry)
Parliament can misapply easement (railway)
You can impose conditions and time limits but only at point of creation
Regency Villas v Diamond Resorts
You can have an easement for leisure purposes if it is closely connected to land and well defined
Equitable easements - overriding?
Only through actual occupation of the servient land by dominant owner - might be that equitable easements can never be overriding (what Lam Commission intended)!
