Easements Flashcards
First class answer
What is an easement?
An easement is a private right enjoyed over neighbouring land.
Examples of established easements
- Right of way/ access
- Right to light
- Right to water
- Right to support
Re Ellenborough Park
Evershed MR set out the characteristics
Right of way/ access
London and Suburban Land and Building Co. v Carey
London and Suburban Land and Building Co. v Carey
right to park can be an easement
Right to light
Carr-Saunders v Dick Mc Neil Associates
Carr-Saunders v Dick Mc Neil Associates
the amount of light one can claim is that which is necessary according to the ordinary notion of mankind.
Right to water
Race v Ward
Race v Ward
in a defined channel, eg. pipe or stream.
Right to support
Bradburn v Lindsay
Fencing
Crow v Wood
Crow v Wood
a right requiring the ST owner to fence his land.
Right to park
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.
London and Blenheim Estates v Ladbroke Retail Parks
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.
Moody v Steggles
right to fix sign on neighbouring house
Copeland v Greenhalf
storing tools of trade- joint user- no easement
Grisby v Melville
storage in a cellar- joint user- no easement
Wright v Macadam
storing coal. no joint user- easement.
Hanina v Morland
Exclusive possession so not an easement
Aldred’s Case
Wray CJ said that the law would not protect things of delight.
Mounsey v Ismay
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
Characteristics of easements?
Lord Evershed in Re Ellenborough Park set out the characteristics:
- There must be a DT and a ST
- The DT and ST must be owned by different persons
- The easement must accommodate the DT
- The right must be capable of forming the subject matter of a grant.
- There must be a DT and a ST
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)
Hawkins v Rutter
A DOMINANT AND SERVIENT TENEMENT MUST EXIST
Alfred Becket v Lyons
The court held first that there could be no easement in this case as there was no dominant tenement .
- The DT and ST must be owned by different persons
The two pieces of land must be owned or occupied by 2 separate persons.
Roe v Siddons
There must be separate owners of the two tenements, you cannot have an easement over your own land.
- The easement must accommodate the DT
The easement must benefit the DT itself. Must confer an advantage/ benefit/ increase it’s saleability.
- P A Swift
- Hill v Tupper
- Moody v Steggles
- Pugh v Savage
P A Swift Investments
affects the nature, quality, mode, use or value of the land benefited and benefits the land as opposed to a person
Hill v Tupper
Personal benefit- exclusive right to hire out boats on canal.
Moody v Steggles
Benefitted business.
Pugh v Savage
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.
- The right must be capable of forming the subject matter of a grant.
Three aspects to consider:
- Need capable grantor and grantee
- Right must be sufficiently definite
- Right claimed must lie in grant
- Need capable grantor
- Estate in land (legal or equitable)
2. legal capacity
- Right must be sufficiently definite
Must be able to describe the right clearly.
- Bland v Mosely
- Browne v Flower
Bland v Mosely
right to view failed as it was too ambiguous to define.
Browne v Flower
right to privacy- failed- too vague for court to define
- Right claimed must lie in grant
Right must be judicially recognised or analogous to a recognised easement. right must fall within established categories.
- right of storage- Wright v Macadam
- Right to park- London & Blenheim
- new positive easement allowed but no new negative ones- Phipps v Pear, Hunter v Canary Wharf
Phipps v Pear
cts not keen on adding negative easements to established list
Hunter v Canary Wharf
right to tv signal- no easement. Was a negative easement restricting owner’s right to build.
Positive easement
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.
Negative easement
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.
