EASEMENTS Flashcards
What is an easement?
The right to do something on a plot of land belonging to another
Dominant tenement over a servient tenement
Classic example of an easement
Right of way
What are the two requirements of an easement?
1) Satisfys the 4 requirements of re ELLENBOROUGH PARK
2) Was created correctly
What are the 4 requirements of Re ELLENBOROUGH PARK
- Dom and serv tenements must be identifiable
- Must accommodate the dom tenement
- Diversity of ownership of the estates
- Must be capable of being subject matter of a grant
Acronym for remembering ELLENBOROUGH PARK
D -Dom and serv tenements indentifable
A - Accommodates dom tenement
D - Diversity of ownership
S - Subject matter of deed
Case for dom and serv tenements clearly identifiable
LONDON AND BLENHEIM ESTATES v LADBROKE
Cases for no identifiable dominant land = no easement
HAWKINS v RUTTER - no easement
MOODIE v STEGGLES - easement allowed
HAWKINS v RUTTER
- Tried to claim an easement for his barge and the right to moor it along the canal
- Barge not real property (land) so could not be a dominant tenement
- No dominant tenement = no easement
Case stating ST must serve DT, benefiting the land?
HILL V TUPPER
HILL v TUPPER
- Claimed a right to run hired boats on a canal
- When a competitor did he same, claim made that he had an easement over the canal so could exclude the competitor
- He had a mere personal contractual right over the canal, as if it doesn’t benefit the land = no easement, no property right
- Could only sue for breach of contract
MOODIE v STEGGLES
- Sign for a pub on the main road, pub itself down a side alley
- Landowner on main road wanted to remove the sign
- Sign held to benefit the land (pointed to the pub) and was integral to use of land as a pub
- DT was the pub, ST the rod where the sign was
= easement so could not be removed
Why are courts generally reluctant to grant property right?
They are long lasting and powerful
Case for there being diversity of ownership of tenements?
ROE v SIDDONS
ROE v SIDDONS
Impossible to have an easement over your own land
Why is subject matter of an easement important?
-> Must be capable of being subject matter of a grant, so it can be put in a lease
What are certain established easements?
1) Clearly defined right of way (clear as to allow co-existence of rights of both tenants)
2) Drainage
3) Something capable of being a property right
Is a view an easement?
NO
-> Too imprecise
Case for right to a view not being an easement
Re ALDREDS
Re ALDREDS
Cannot have easement that is the right to a view, it is too imprecise
Case that states in order to be an easement it must be capable of being a property right?
HUNTER v CANARY WARF
Why can’t an easement amount to exclusive possession?
- > It is only the co-existence of separate property rights
- > Exclusive possession = lease
BATCHELOR v MARLOW
no easement
- Claim of easement to use 6 parking spaces in a tiny lot, mon-fri, 8.30am-6pm
- Having a right at specific times = exclusive possession, particularly as so extensive
- If ST loses reasonable enjoyment of their land then cannot be an easement
MILLER v EMCER
easement
- Had right to use toilet in neighbours garden, neighbour argued = exclusive possession as they couldn’t use it while he was in it
- Was not constantly in the toilet, only while using it = exclusive use NOT exclusive possesion
- Both were entitled to exclusive use, balance
WRIGHT v MACADAM
easement
- In relation to storage space
- Given permission to use coal storage area, owner argued that exclusive possession of the coal shed taken
- There were plenty of other areas to safely store coal on the ST, so easement was allowed
- Shows importance of considering entire area of both tenements to achieve a balance of rights
MONCREIF v JAMESON (Scottish case)
easement
- Also to do with storage
- Idea of a test centred on possession and control of an area, like MARLOW
What is meant by an easement being a negative burden?
It doesn’t involve expenditure
Case that states easement is negative burden
REGIS PROPERTY v REDMAN
What was the argument in CROW v WOOD
- Possibility of allowing expenditure towards upkeep of a swimming pool so they could give an easement for it’s use
- Court held no, ANY expenditure = no easement
REGIS PROPERTY v REDMAN
confirmed in
CROW v WOOD
Easement’s do not involve expenditure
Case for easement being a right, not a permission
GREEN v ASCHO
GREEN v ASCHO
- Gate to use right of way across ST was locked, DT had to ask for it to be opened
- Having to ask for permission is not using an easement as a right, which it is
According to LPA 1925, how is an express easement created?
- > Giving express permission
- > s52 states it must be by deed
- > s1(2)(a) states it must amount to an estate in land, i.e. be for a fixed term or forever
s52 LPA 1925
For an express easement to be legally valid it must be made by deed
s1(2)(a) LPA 1925
Easements must amount to an estate in land
- > Fixed term OR
- > Lasts forever
Why has the law on valid legal easements changed since 2002?
s27 of the LAND REGISTRATION ACT 2002
- Easement must be registered in it’s own right
- Is separate on the register
Section of the LRA 2002 stating easements must be registered in their own right
s27
