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Land > Easements > Flashcards

Easements Flashcards

1
Q

Is the right capable of being an easement?

A

In Re Ellenborough Park:

  • there must be a dominant and servient tenement
  • it must accommodate the dominant tenement
  • there must be diversity of ownership
  • the right must lie in grant
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2
Q

There must be a dominant and servient tenement - 2 identifiable pieces of land one benefitting and one burdened by the right

A

London and Blenheim Estates v Ladbroke Retail Parks

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3
Q

An easement cannot be exercised by the interest-holder independently of any land he owns

A

Hawkins v Rutter

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4
Q

Easement accommodates the dominant tenement

A
  • is it connected to the normal use and enjoyment of the dominant tenement? Mere personal benefit insufficient.

Does it make dominant tenement a better property? Does it benefit any owner? Does right positively affect the value of the property?

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5
Q

Re Ellenborough Park

A

Was right to use the park ‘reasonably necessary for the better enjoyment of that tenement’?
Private garden is an attribute to ordinary enjoyment of the residence (c.f. Jackson v Mulvaney)

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6
Q

Right to exclusively put or use boats on river; ran boat hire business - not an easement as it simply benefitted him personally; unconnected with use and enjoyment of land

A

Hill v Tupper

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7
Q

Pub owner had easement to hand sign from neighbour’s property - closely connected to land

A

Moody v Steggles - is business a necessary incidental of the normal use of the land rather than completely unconnected business?

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8
Q

Dominant and servient tenements must be sufficiently proximate

A

Bailey v Stephens

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9
Q

Diversity of ownership - any rights a person exercises over one part of his own land to benefit another part of his land are quasi-easements and are capable of becoming easements on division of ownership

A

Roe v Siddons

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10
Q

Right must lie in grant (i.e. be capable of forming the subject matter of a deed)

A
  • must be a capable grantor and grantee with separate legal personalities (vague, fluctuating body will not count)
  • grantor must have sufficient ownership over servient land
  • subject matter must be capable of reasonably exact description
  • right should be within the general nature of rights traditionally recognised as easements
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11
Q

Right to scenic view is too vague to lie in grant

A

Wiliam Aldred’s Case

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12
Q

Right to flow of light through undefined channels too vague

A

Harris v De Pinna

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13
Q

Rights of way

A

Borman v Griffith

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14
Q

Rights of light

A

Colls v Home & Colonial Stores

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15
Q

Rights to water in defined channel

A

Race v Ward

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16
Q

Rights to air in defined channgel

A

Wong v Beaumont Property Trust

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17
Q

Right to support

A

Dalton v Angus

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18
Q

Rights to drainage ad pipelines through defined channel

A

Atwood v Bovis Homes

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19
Q

Rights to pollute a river

A

Scott-Whitehead v National Coal Board

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20
Q

Rights to cause a nuisance

A

Sturges v Bridgman

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21
Q

Rights to storage

A

Wright v McAdam

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22
Q

List is not exhaustive - courts willing to expand to accommodate social change

A

Dyce v Lady James Hay

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23
Q

New easements should not be negative in nature

A

Hunter v Canary Wharf - right to TV rejected as it would restrict development of servient land

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24
Q

Additional limitations

A
  • expenditure by servient tenement owner
  • exclusive possession
  • dependence upon permission by servient tenement owner
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25
Q

Exercise of right requires the servient tenement owner to spend money - no easement

A

Regis Property Co v Redman (supply of hot water not an easement)

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26
Q

Distinction between right to water supply (requiring expenditure) and right to passage of water through existing pipes - dominant owner liable to reimburse servient owner for expenses incurred

A

Rance v Elvin

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27
Q

Servient tenement owner has no obligation to do any repairs or maintenance to enable the dominant tenement owner to enjoy the easement. But he must allow the dominant owner to enter the servient tenement to do the necessary repairs at his own expense

A

Jones v Pritchard; Carter v Cole

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28
Q

Where exercise of right amounts to exclusive possession of the servient tenement, it cannot be an easement

A

Copeland v Greenhalf (right to keep vehicles on C’s land = exclusive possession)

Grigsby v Melville (right to store articles amount to exclusive possession)

Jackson v Mulvaney (right to use garden did not prevent servient owner from also using it - easement upheld

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29
Q

Easement to park in one of several spaces upheld so long as it did not interfere with servient owner’s reasonable use of the land

A

London & Blenheim Estates v Ladbroke Retail

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30
Q

Right to park in any one of four spaces upheld as easement

A

Hair v Gillman

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31
Q

Right to part 6 cars from 8am-6pm Mon-Fri failed as virtually whole beneficial use of land

A

Batchelor v Marlow

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32
Q

Moncrieff v Jamieson

A

True test is that the servient owner should not be deprived of possession and control. But Scottish - only persuasive - deprivation of use or deprivation or possession and control?

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33
Q

If dominant tenement owner has to seek fresh permission every time he wishes to exercise the right, it cannot be an easement

A

Green v Ashco Horticultural - always moved van when asked

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34
Q

Express Acquisition

A
  • express grant

- express reservation

35
Q

Any easement that has been expressly reserved will be construed strictly against the person who reserved the right

A

Cordell v Second Clanfield Properties

36
Q

Implied acquisition

A
  • necessity (grant & reservation)
  • common intention (grant & reservation)
  • Wheeldon v Burrows (grant only)
  • s62 LPA (grant only)
37
Q

Necessity

A

An easement will by implied where it can be shown that its existence is essential for any use of the dominant tenement to be made

38
Q

No easement of necessity will be inferred if there is some other means of access to that land, even if difficult or inconvenient

A

Manjang v Drammeh

39
Q

Right of way may be implied out of necessity even where landlocked dominant tenement was partly surrounded by land owned by a 3rd party who may in theory provide an alternative means of access

A

Adealon International v Merton BC (CA)

40
Q

Easement will not be implied out of necessity merely because it is highly advantageous e.g. rights of drainage, sewerage, electricity

A

Pryce v McGuinness

41
Q

Common Intention

A

An easement will be implied out of common intention where the land has been sold for a particular purpose and that purpose cannot be fulfilled without the existence of an easement

42
Q

General intention as to how property should be used is insufficient, parties must intend property to be used in some definite and particular manner

A

Pwllbach Colliery v Woodman

43
Q

Covenant to keep premises free from cooking smells could not be achieved without extractor fan - easement of common intention to enter landlord’s premises to install a fan

A

Wong v Beaumont Properties

44
Q

Where a person wishes to rely on an easement being impliedly reserved by common intention, there will be a heavy burden of proof resting upon him to show that the reservation was mutually intended

A

Re Webb’s Lease - simply showing that the right had been openly exercised prior to transaction into which it has been acquired may not be enough to impliedly resrve it

45
Q

Reservation by common intention will only be found if the facts are ‘not reasonably consistent with any explanation other than that of an implied reservation’

A

Peckham v Ellison

46
Q

Wheeldon v Burrows

A

Where A owns land and sells/leases part of the land to B, B will impliedly acquire as easements all those rights which A had previously exercised over the land he retains for the benefit of the land he has sold/leased to B

47
Q

Wheeldon v Burrows only operates where, immediately prior to the sale/lease, there was a common owner and occupier of the whole

A

Kent v Kavanagh

48
Q

Wheeldon v Burrows can also operate where a common owner splits the land and sells/leases both plots contemporaneously

A

Swansborough v Coventry

49
Q

Requirements for Wheeldon v Burrows:

A

Right must be:

  • continuous and apparent
  • necessary to reasonable enjoyment of property
  • in use at date of transfer
50
Q

Must be discoverable from careful inspection of land by a person ordinarily conversant with the

A

Pyer v Carter

51
Q

Necessary to reasonable enjoyment if it enhances enjoyment of land e.g. use of main drive even though alternative access which was not strong enough for heavy vehicles

A

Borman v Griffith

52
Q

Where alternative access routes are equally as convenient, no easement will be implied under Wheeldon v Burrows

A

Wheeler v Saunders

53
Q

Suggested that necessary to reasonable enjoyment and continuous and apparent requirements are alternatives and one alone is sufficient.

A

Ward v Kirkland

BUT predominant view is that both must be satisfied (Millman v Ellis)

54
Q

Must have been used by common owner in recent past and expected to be exercised again in near future

A

Kent v Kavanagh - use by tenant insufficient

55
Q

Implied acquisition under Wheeldon v Burrows can also operate on a contract to sell/lease (unlike s62 LPA)

A

Borman v Griffiths

56
Q

s62 LPA

A

Automatically allows all easements attached to and benefitting a piece of land to pass to a successor in title automatically

Only operates where there has been a conveyance (unlike Wheeldon v Burrows)

Possible to exclude operation - s62(4) LPA

57
Q

s62 LPA will only operate where there is prior diversity of dominant and servient tenement ownership prior to the conveyance

A

Payne v Inwood

Except where right to light - Broomfield v Williams

58
Q

Conveyance = document creating legal estate (not equitable)

A

Wright v Macadam

59
Q

Landlord allowed tenant of lodge to use main drive, tenant subsequently bought lodge - acquired as easement

A

International Tea Stores v Hobbs

60
Q

Prescription

A

Where rights have been exercised for a long time, but no actual grant of the right can be traced, it may be acquired

61
Q

Requirements for prescription:

A
  • exercise of right must be ‘of right’ - neither by force, by stealth or by permission’
  • exercise of right must be by/on behalf of one fee simple owner against another fee simple owner, who knows about use and does not resist it
  • use must be continuous until established
62
Q

Prescriptive easement of drainage failed as the use, though not surreptitious was unknown to and unsuspected by plaintiff

A

Barney v BP Truckstops

63
Q

Unsolicited permission prevented use being of right

A

Odey v Baker

64
Q

Period of user as of right against a tenant may give rise to an easement if owner of freehold knew of user at some stage and could have stopped it but failed to do so

A

Williams v Sandy Lane

65
Q

Common Law prescription

A
  • enjoyed since time immemorial (since 1189)
  • if it can be shown use has existed for at least 20 years, it will be presumed that it has existed since 1189, unless it can be shown that at some time since 1189, the right could not/did not exist e.g. for building clearly erected after 1189/ownership changed since 1189
66
Q

Prescription - lost modern grant

A

If continuous user for at least 20 years can be shown, there is a judicial presumption that at some point there was a valid deed of grant which has been lost. Court will not admit evidence to show that there never was a grant, but must first apply common law prescription.

67
Q

Prescription Act 1832 - Easements other than light

A

continuous use for 20 years can be defeated if:

  • user not of right
  • servient owner is infant/mentally incapable/ tenant for life - period of ownership deducted
  • interruption of a year or more

40 year period defeated if:

  • user not of right (oral consent ok unless repeated - Gardener v Hodgson’s Kingston Brewery)
  • periods of ownership by infant/mental patient not deducted
  • interruption of more than 1 year
68
Q

Prescription Act - easements of light

A

Period of 20 years only

  • user does not have to be of right, but written permission will defeat easement
  • no disability of servient owner will affect period
  • tenant may acquire easement against landlord/ another tenant of same landlord if for benefit of property
  • amount of light is such as is necessary for ordinary use and enjoyment of land
69
Q

Amount of light depends on ordinary use

A

Allen v Greenwood (greenhouse needs more light)

Carr-Saunders v Dick McNeil

70
Q

Rights of Light Act 1959

A

Possible to register a light obstruction notice effective for one year as a local land charge; notice must be given to all interested parties

71
Q

House converted into institution housing 150 people - excessive burden - dominant owner had to restrict user to the extent the easement used to be

A

Woods v Saunders

72
Q

Land changed from agricultural to caravan park for 200 caravans - excessive

A

Jelbert v Davis

73
Q

Legal Easement

A
  • created for duration of fee simple or term of years - s1(2) LPA
  • acquired by deed (whether in grant of freehold/lease or independently)
74
Q

Easement expressly acquired over registered land

A

Registration to be legal - s27(2)(d) LRA 2002.

No registration requirements for implied or prescribed easements

75
Q

Equitable easement

A
  • grantor of easement has equitable estate (s53(1)(a) formalities)
  • failure to fulfil formal requirements for legal easement - s2 LPMPA formalities
  • contract to grant legal easement in future - s2 LPMPA + SP
  • easement implied into acquisition of equitable estate - no formalities
76
Q

Passing benefit of easement to a successor of the dominant tenement

A

s62 LPA - automatically passes on conveyance of dominant tenement

77
Q

Enforcing burden of easement against a successor of the servient tenement - registered land

A

Legal easements acquired by express acquisition - registration (s27(2)(d) LRA); notice on charges register of servient tenement entered (s38 LRA)

Legal easements acquired impliedly or by prescription:
- overriding interest if Sch3 Para3 satisfied

Equitable easements:
- notice on charges section of the register of the servient tenement - s32 LRA. If not entered, not binding on a purchaser for value

78
Q

Enforcing burden on successor of servient tenement - unregistered land

A

Legal Easements (by all methods) - bind the whole world

Equitable Easements - registrable as Class D(iii) land charge (post-1926); if not registered, purchaser of legal estate for money or money’s worth not bound. Pre-1926 doctrine of notice applies

79
Q

Extinguishment of easements

A

Express - deed necessary but equity may interfere - Waterloo v Bacon

Implied - where dominant owner abandons his rights; mere non-user is generally insufficient

Unity of possession will suspend right; once possession and ownership are in same hands (unity of seisin), the easement is extinguished

80
Q

30 years of non use of right of way, now difficult to access but not impossible was not abandoned as not clear intention

A

Williams v Sandy Lane

81
Q

Right of way not uses for 50 years and blocked by fences = abandoned

A

Swan v Sinclair

82
Q

Right of way not used for 100 years because there were alternative access routes not abandoned as could be resurrected

A

Been v Hardinge

83
Q

Pulled down cottage with windows and built windowless wall; 19 years later wanted window - easement had been abandoned

A

Moore v Rawson

Land (10 decks)

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