Easements

Question 1

What is an easement?

Answer 1

An easement is a way in which an individual can have a right over property that he or she does not actually own. An easement is an incorporeal hereditament and a proprietary right. Part of the land and invisible.

Question 2

What is the importance of the case Re Ellenborough Park 1965?

Answer 2

You MUST include in easement question.

Sets out the characteristics of an easement if one is missing it is NOT an easement.

Question 3

What is Characteristic One?

Think case Re Ellenborough Park 1965

Answer 3

There must be a dominant and a servient tenement.

Someone at an advantage someone carrying the burden.

Question 4

What is a Characteristic two?

Part 1

Think case Re Ellenborough Park 1965

Answer 4

The easement must ‘accommodate’ the dominant tenement.
Easement must benefit the land NOT the other.
Does the property benefit future owners.

Question 5

What is the case Hill v Tupper (1863)?

Does this case accommodate land…

Characteristic 2- Re Ellenborough Park 1965

Answer 5

This concerned land which ran along the side of a canal. One estate owner argued that he had an easement over the canal which allowed him to be the ONLY person to run a business putting pressure boats on the canal. Another state owner of land further along the canal who also wanted to put boats on the canal disagreed.

Question 6

What is the case Moody v Steggles (1879)?

Does this case accommodate land…

Characteristic 2- Re Ellenborough Park 1965

Answer 6

This concerned a public house. The court had to consider whether the right to have a sign promoting the business on adjoining land could accommodate the land upon which the pub stood and therefore an EASEMENT Anyone who brought the land would benefit.

Question 7

What is the case Wong v Beaumont Property Trust Ltd (1965)?

Does this case accommodate land…

Characteristic 2- Re Ellenborough Park 1965

Answer 7

The property in question was being used as a Chinese restaurant. The restaurant was in a basement of the property. Would a right allowing a large ventilation duct on an above property accommodate the Chinese restaurant? It had been deemed to be a health and safety requirement. It is an EASEMENT.

Question 8

What is the case Clapman v Edwards (1938)?

Does this case accommodate land…

Characteristic 2- Re Ellenborough Park 1965

Answer 8

The property in question was a petrol station. The question arose as to whether the right to advertise on an adjoining building, accommodated the land and was an EASEMENT. The advertisement space could be rented out to a third party to advertise ANYTHING or be used to advertise the garage. Not an EASEMENT.

Question 9

What is characteristic 2?

Part 2

Characteristic 2- Re Ellenborough Park 1965

Answer 9

The dominant and servient tenement should be sufficiently close.

Question 10

What is the case Todrick v Western National Omnibus Company (1934)?

Characteristic 2- Re Ellenborough Park 1965

Answer 10

The grant of right of way was in unrestricted language but the road way in question was very narrow and was contained by retaining wall to prevent it slipping down the valley. It was argued that ‘here is a reservation of a right of way in unlimited language and vehicle and of purpose for which the most extensive right of way can be used.

The dominant and servient tenement should be sufficiently close.

Question 11

What is characteristic 3?

Characteristic 2- Re Ellenborough Park 1965

Answer 11

The tenements must not be owned and occupied by the same people.

Question 12

What is characteristic 2?

Part 3

Re Ellenborough Park 1965

Answer 12

Rights that purely recreational do not accommodate the land

Question 13

What is the case Mulvaney v Gough [2002]?

Characteristic 2
Part 3 rights that a purely recreational do not accommodate the land.

Re Ellenborough Park 1965

Answer 13

Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as a garden by the cottagers. The land owner removed a flower bed.
Held: the use of land over the years as a communal garden had created an easement and the defendants had gone along with the use.

Question 14

What is the case Regency Villas Title Ltd. & Others v Diamonds Resorts Ltd and others (2018)?

Characteristic 2
Part 3- rights that a purely recreational do not accommodate the land.

Re Ellenborough Park 1965

Answer 14

The owners of timeshare properties at a resort argued that there was an easement allowing them access to an outdoor heated swimming pool etc.
Although recreational it adds value/ enhance the property.

Question 15

What is characteristic 4?

Part 1

Re Ellenborough Park 1965

Answer 15

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

There must be a capable grantor and grantee
The right must be sufficiently definite

Question 16

What is the case Easton v Isted [1903] concerned with?

Characteristic 4

Part 1- The easement must be capable of forming the subject matter of a grant.

Re Ellenborough Park 1965

Answer 16

Concerned the question of an easement of LIGHT

Question 17

What is the case Browne v Flower [1911] concerned with?

Characteristic 4

Part 1- The easement must be capable of forming the subject matter of a grant.

Re Ellenborough Park 1965

Answer 17

Concerned the question of an easement of PRIVACY.

Question 18

What is characteristic 4?

Part 2

Re Ellenborough Park 1965

Answer 18

The role of the owner of a servient tenement is generally passive.

Servient shouldn’t have to do anything.

Question 19

What is the case Holbeck Hall Hotel Ltd v Scarborough B.C. [2000]?

Characteristic 4- Part 2

Re Ellenborough Park 1965

Answer 19

The claimants owner Holbeck Hall. The defendant council owned the land between the hotel and the sea. A massive land slip took place on the cliff. The lawn of the hotel disappeared into the sea and the ground under the seaward wing of the hotel had collapsed. The hotel became unsafe and had to be demolished. Council NOT liable.

Question 20

What is characteristic 4?

Part 3

Re Ellenborough Park 1965

Answer 20

Any right claimed as an easement can not amount to possession of the land.

Question 21

What is an legal easement?

Answer 21

Created by deed. Applies to everyone

Question 22

What is the case International Tea Stores Company v Hobbs [1903]?

Answer 22

Right to walk along a pathway. Licence turned into an easement when land was conveyed.

Question 23

What amounts to a conveyance?

Answer 23

A deed.

Question 24

What is a Grant?

Answer 24

Giving you an easement.

Question 25

What is a reservation?

Answer 25

Reserving for yourself some easement.

Question 26

What is an express easement?

Answer 26

Agreed by discussing what the easement is going to be.

Question 27

What is a Legal Easement?

Answer 27

Created by deed and applies to everyone. Signed/witness/legally bound. Registered at land registry.

Question 28

What is an Implied Grant?

Answer 28

Legal easements.

Talk about how the easement is applied.

Question 29

What is necessity?

Answer 29

You need the easement.
When land is Sub-divided.
Easements of necessity usually arise where the land would be landlocked without the right.
The easement of necessity is strictly controlled. The dominant tenement must have no access at all.
An easement of necessity will only be implied if there would be no enjoyment of the land at all without such an easement.

Question 30

What is Common Intention?

Answer 30

Both intended.
Easements may be implied in favour of a transferee in order to give effect to a common intention of the parties.
Two circumstances when an easement of common intention will be implied:
If it is necessary for the enjoyment of a right that has been expressly granted.
If it can be implied from the circumstances in which the grant was made.

Question 31

What are quasi easements?

Answer 31

A right over one’s own land that is not an easement but could be if the two plots of land were owned by two different persons.

Question 32

What is the case Wright v Macadam [1949]?

Answer 32

Tenant renting flat from landlord. Landlord said can use the shed for storage. (Licence) person living in the flat brought the freehold.

Question 33

What is Licence?

Answer 33

Permission not stuck to the land.

Question 34

What is Section 62 Law of Property Act 1925?

Answer 34

When land is transferred, by conveyance (legal transfer of land) any rights/ benefits are transferred with it. Rights and benefits will be transferred.

Question 35

What is Prescription?

Answer 35

If a right over land is exercised over the land of another over a long period of time then it is possible to claim that the use becomes a legal easement, even without an express grant from the landowner.

Question 36

What is Prescription under Common Law?

Answer 36

The claimant has to show that the easement has been enjoyed not just for a long period of time but since time immemorial. The law holds that time immemorial starts in 1189.

Question 37

What does Nec vic nec clam nec precario mean?

Prescription

Answer 37

Must be doing it without being secretive and without force.

Question 38

What is the doctrine of lost modern grant?

Answer 38

Claims are based on a legal fiction which suggests a grant had been made at one time but the grant had been lost. A successful case today would generally show that there had been continuous use for 20 years.

Question 39

What is the case Tehidy Minerals Ltd v Norman [1971] 2 QB 528?

Answer 39

It was held that even where there was evidence that no grant had ever been made, this would not prevent a right from arising under the doctrine.

Question 40

What is Statutory Prescription under the Prescription Act 1832?

Answer 40

Under the act the claimant must satisfy one of the two time periods to succeed:
The short period: 20 years continuous and uninterrupted use immediately before the claim, ‘next before some suit action’. This can be defeated by the defendant if he prove that the right based on consent of the owner.
The long period: 40 years continuous and uninterrupted us immediately before the claim, ‘next before some suit or action’. This claim cannot be defeated even if there is proof that the right was granted with the consent of the landowner, unless the consent was given in writing.