Easements

Question 1

What is an easement?

Answer 1

An easement is a private right enjoyed over neighbouring land.

Question 2

Examples of established easements

Answer 2

1. Right of way/ access
2. Right to light
3. Right to water
4. Right to support

Question 3

Re Ellenborough Park

Answer 3

Evershed MR set out the characteristics

Question 4

Right of way/ access

Answer 4

London and Suburban Land and Building Co. v Carey

Question 5

London and Suburban Land and Building Co. v Carey

Answer 5

right to park can be an easement

Question 6

Right to light

Answer 6

Carr-Saunders v Dick Mc Neil Associates

Question 7

Carr-Saunders v Dick Mc Neil Associates

Answer 7

the amount of light one can claim is that which is necessary according to the ordinary notion of mankind.

Question 8

Right to water

Answer 8

Race v Ward

Question 9

Race v Ward

Answer 9

in a defined channel, eg. pipe or stream.

Question 10

Right to support

Answer 10

Bradburn v Lindsay

Question 11

Fencing

Answer 11

Crow v Wood

Question 12

Crow v Wood

Answer 12

a right requiring the ST owner to fence his land.

Question 13

Right to park

Answer 13

an easement of parking can be allowed only if the right is exercised generally and not in respect of defined part. Once it does not amount to exclusive beneficial use of the ST depriving the owner of any reasonable use of his land, whether for parking or anything else.

Question 14

London and Blenheim Estates v Ladbroke Retail Parks

Answer 14

A right to park on adjoining land to walk across it with shopping trolleys was capable of existing as an easement for the benefit of the DT on which there was a supermarket.

Question 15

Moody v Steggles

Answer 15

right to fix sign on neighbouring house

Question 16

Copeland v Greenhalf

Answer 16

storing tools of trade- joint user- no easement

Question 17

Grisby v Melville

Answer 17

storage in a cellar- joint user- no easement

Question 18

Wright v Macadam

Answer 18

storing coal. no joint user- easement.

Question 19

Hanina v Morland

Answer 19

Exclusive possession so not an easement

Question 20

Aldred’s Case

Answer 20

Wray CJ said that the law would not protect things of delight.

Question 21

Mounsey v Ismay

Answer 21

to bring the right within the term easement, it must be a right of utility and benefit, and not one of mere recreation and amusement as per Martin B

Question 22

Characteristics of easements?

Answer 22

Lord Evershed in Re Ellenborough Park set out the characteristics:

1. There must be a DT and a ST
2. The DT and ST must be owned by different persons
3. The easement must accommodate the DT
4. The right must be capable of forming the subject matter of a grant.

Question 23

1. There must be a DT and a ST

Answer 23

DT- the land which is benefitted by the easement
ST- the land which is burdened by the easement

There must be two identifiable pieces of land… one which benefits from the exercise of the right (dominant), and one which is burdened by it’s existence (servient)

Question 24

Hawkins v Rutter

Answer 24

A DOMINANT AND SERVIENT TENEMENT MUST EXIST

Question 25

Alfred Becket v Lyons

Answer 25

The court held first that there could be no easement in this case as there was no dominant tenement .

Question 26

2. The DT and ST must be owned by different persons

Answer 26

The two pieces of land must be owned or occupied by 2 separate persons.

Question 27

Roe v Siddons

Answer 27

There must be separate owners of the two tenements, you cannot have an easement over your own land.

Question 28

3. The easement must accommodate the DT

Answer 28

The easement must benefit the DT itself. Must confer an advantage/ benefit/ increase it’s saleability.

1. P A Swift
2. Hill v Tupper
3. Moody v Steggles
4. Pugh v Savage

Question 29

P A Swift Investments

Answer 29

affects the nature, quality, mode, use or value of the land benefited and benefits the land as opposed to a person

Question 30

Hill v Tupper

Answer 30

Personal benefit- exclusive right to hire out boats on canal.

Question 31

Moody v Steggles

Answer 31

Benefitted business.

Question 32

Pugh v Savage

Answer 32

Right of way to get to one from to another. But the field was a field over. Proximate. Must be near enough for the DT to be benefitted by the right.

Question 33

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

Answer 33

Three aspects to consider:

1. Need capable grantor and grantee
2. Right must be sufficiently definite
3. Right claimed must lie in grant

Question 34

1. Need capable grantor

Answer 34

1. Estate in land (legal or equitable)

2. legal capacity

Question 35

2. Right must be sufficiently definite

Answer 35

Must be able to describe the right clearly.

1. Bland v Mosely
2. Browne v Flower

Question 36

Bland v Mosely

Answer 36

right to view failed as it was too ambiguous to define.

Question 37

Browne v Flower

Answer 37

right to privacy- failed- too vague for court to define

Question 38

3. Right claimed must lie in grant

Answer 38

Right must be judicially recognised or analogous to a recognised easement. right must fall within established categories.

1. right of storage- Wright v Macadam
2. Right to park- London & Blenheim
3. new positive easement allowed but no new negative ones- Phipps v Pear, Hunter v Canary Wharf

Question 39

Phipps v Pear

Answer 39

cts not keen on adding negative easements to established list

Question 40

Hunter v Canary Wharf

Answer 40

right to tv signal- no easement. Was a negative easement restricting owner’s right to build.

Question 41

Positive easement

Answer 41

gives the easement holder the right to do something, and requires that the property owner do something – such as allowing another access to or across a certain piece of property.

Question 42

Negative easement

Answer 42

a promise not to do something with a certain piece of property, such as not building a structure more than one story high or not blocking a mountain view by constructing a fence.