Easements and Profits

Question 1

Rules from Re Ellenborough Park [1956]

Answer 1

1. There must be a dominant and servient tenement;
2. Dominant and servient owners must be different persons;
3. The easement must accommodate the dominant tenement;
4. The right claimed must be capable of forming the subject-matter of a grant.

Question 2

1. Need for a dominant and servient tenement, info

Answer 2

A right cannot be ‘in gross’, it must be ‘appurtenant’ to the land - Wall v Collins, where easement was appurtenant to the land for the duration of the lease. 2008 Consultation Paper, Law Commission took opposite view and advised this case to be overturned by legislation.
Two pieces of land must be readily identifiable: ‘for the benefit of the land known as…’

Question 3

2. Dominant and servient owners must be different persons, info

Answer 3

The two tenements must not be both owned and occupied by the same person. Cannot exercise an easement against oneself, but can give rise to quasi-easements in Wheeldon.

Question 4

3. The easement must accommodate the dominant tenement, info

Answer 4

The right must confer an advantage on the dominant land, not merely a personal advantage.
Hill v Tupper (1863): right claimed as an easement to put pleasure-boats on canal bordering ‘dominant’ land. Held this right did not amount to an easement, because it benefitted the business and not the land.

Question 5

3.1 Change of character, info

Answer 5

Attwood v Bovis Homes Ltd (2002): the land having the benefit of the drainage ceased to be agricultural land and was being developed. Argued that the easement should be restricted to the benefit conferred on the land as it had been at the time. Rejected. May have been different if it led to a substantial increase in the burden or changed the nature of the burden.

Question 6

3.2 Use to benefit of additional land, info

Answer 6

Peacock v Custins: farmer wanted to use a right of way to gain access to a field not part of the dominant land, but which he farmed with the dominant land. Court of Appeal confirmed right was determined by reference to the land mentioned in the conveyance only.

Question 7

4. The easement must be capable of forming the subject matter of the grant, info

Answer 7

Easements are interests in land which can be legal interests, and as such they must ‘lie in grant’. Must be capable of being granted by deed. Rules exist, from Re Ellenborough Park, consideration of whether the alleged easement was: too wide or vague, must not deprive the servient owner of possession, or a mere right of recreation or amusement.

Question 8

4.1 Easements of storage, info

Answer 8

Generally accepted that a right to store goods on another’s land constitutes an easement. Use of storage does appear to exclude owner from it. Not considered in Wright v Macadam [1949], Court of Appeal without question said could store coal in her landowner’s shed.

Question 9

Copeland v Greenhalf [1952]

Answer 9

High Court rejected a claim by the owner of a workshop that he had a right to store vehicles awaiting repair or collection on a strip of land belonging to his neighbour. Upjohn J: “… it is virtually a claim to possession of the servient tenement.”
Court in this case did not consider Wright v Macadam.

Question 10

London & Blenheim Ltd v Ladbrooke Parks Ltd [1992]

Answer 10

Following Copeland v Greenhalf (and earlier, Wright v Macadam), Judge Paul Baker QC considered that:
“The matter is one of degree. A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another.”
So, it is possible to store goods, but not too much.

Question 11

4.2 Easements of parking, info

Answer 11

The right to park is only an extension of the easement of storage. From Megarry VC in Newman v Jones:
“In view of Wright v Macadam, the right for a landowner to park a car anywhere in a defined area nearby is capable of existing as an easement.”

Question 12

Batchelor v Marlow [2003]

Moncrieff v Jamieson

Answer 12

The right to store six cars on the land during weekdays was denied, it was held that such an extensive right would leave the plaintiff without any reasonable use of his land - ‘substantial interference test’.
In Moncrieff v Jamieson, Lord Scott said that he would reject the test that asked whether the servient tenement owner is left without any reasonable use of his land and substitute it for a test that asks whether the servient tenement owner retains possession.

Question 13

Easements and profits which can take effect as overriding interests

Answer 13

1. On first registration - all legal easements and profits take effect as overriding interests on first registration. Right which bound the estate owner in unregistered system subsequently carry forward.
2. On dispositions of the registered estate - all expressly created after LRA 2002 came into force are automatically protected by notice on the register of the servient land. An easement or profit will be overriding only if: legal interest, arises by implied grant or reservation, and satisfies one of (registered under Commons Act, acquirer knew of existence, obvious from inspection, exercised within a year).

Question 14

Easements and profits which are protected by entry of notice on title of servient tenement

Answer 14

1. Legal easements and profits which are expressly created - automatically protected by entry of notice on the servient tenement’s register of title.
2. Legal easements and profits arising other than by express creation - may take effect as overriding interests, subject to satisfying the requirements of Sch. 3, para 3 LRA 2002.
3. Equitable easements and profits - never take effect as overriding interests.

Question 15

Easements can arise by implied grant in the following cases:

Answer 15

1. Easements of necessity;
2. Common intention of easements and profits;
3. Easements under the rule in Wheeldon v Burrows (1879).
   Nickerson v Barraclough [1981] suggests that the first two of these are not really separate categories, and that easements of necessity are really a form of intended easement.

Question 16

1. Easements of necessity

Answer 16

An easement which is so essential to the enjoyment of the property that the land cannot be used without the easement.

Question 17

Nickerson v Barraclough [1981], the ‘original rule’:

1

Answer 17

The ‘public policy’ (unusable land through lack of access) justification was rejected. The Court of Appeal stated that easements of necessity were to be seen simply as a type of intended easement.
Buckley LJ: “unless some way is implied, a parcel of land will be inaccessible.”

So, an easement could not be implied where the original vendor has expressly stated that no right of access was being granted.

Question 18

Wong v Beaumont Property Trust Ltd [1965]

1

Answer 18

Basement premises had been let upon the express understanding that the property was to be used as a restaurant. Later, after assignment, the assignee was required to improve ventilation if the business was to continue. Assignee claimed an implied easement for passage of air through a duct to be constructed on the landlord’s property, and was successful on the grounds that it was required for the land’s contemplated use.

Question 19

2. Common intention of easement and profits

Answer 19

Under this heading a grantee may claim a profit or any easement, even though not necessary to the enjoyment of the property, provided it can be shown that both parties intended that it should be granted.

Question 20

Cory v Davies [1923]

2

Answer 20

A row of terraced houses had been built with a drive at the front and an exit to the road at the end. One of the owners barred the exist. There was no express grant of easement in favour of all owners for all parts of the drive, but the court found that the original parties had a common intention that the drive should be used in this way, and thus an intended easement was implied.

Question 21

Kent v Kavanaugh [2007]

2

Answer 21

A pair of semi-detached houses had a path that ran down the middle of the two plots, which gave back garden access to both. Leases made no reference to its use.
The court noted that the path was only three feet wide, with the result that it would have been obvious when the leases were granted that it could not be used by either tenant without passing over the half that lay on the neighbour’s property. There must have been a common intention.

Question 22

3. Wheeldon v Burrows rule

Answer 22

Provides for a situation where, if the owner sells that part of the land which is benefitted, and retains the land which is burdened, the purchaser may acquire an easement over the land retained by the vendor. A quasi-easement would become a true easement.

Question 23

Elements of the Wheeldon v Burrows rule:

Answer 23

1. ‘Continuous and apparent’: enjoyed passsively, such as drainage and light, and in use all of the time. Right of way through tracks and paths can be included.
2. ‘Necessary for the reasonable enjoyment of the property’: the right claimed should facilitate the reasonable enjoyment of the property. Wheeler v JJ Saunders [1996] however held that a second, easier access route despite being convenient was not necessary - other would ‘do just as well’.
3. ‘In use by the owner at the time of the sale’: leads the user to believe that the right passes with the property.

Millman v Ellis, Court of Appeal treated 1 and 2 as separate requirements, each of which needed to be satisfied.

Question 24

Acquisition by express grant:

Answer 24

LPA 1925, s. 62(1).
Has been interpreted by the courts in such a way that it can create new profits and easements in favour of the purchaser, as well as transferring those that already exist.
Any conveyance not excluding provisions of s. 62 will convert into legal easement/profits.

Question 25

Acquisition by prescription:

Answer 25

Both easements and profits may be acquired as the result of long use, as well as by the means of grant and reservation. Three forms:

• common law presumption of long-user;
• the fiction of lost modern grant;
• under the Prescription Act 1832.

Question 26

Easements by prescription 6 requirements:

Answer 26

1. Capable of being an easement (Re Ellenborough);
2. Right must be exercised continuously;
3. An already lawful right cannot arise by prescription;
4. An unlawful right cannot arise by prescription;
5. Must be by one fee simple owner against another fee simple owner;
6. User must be as of right nec clam (secrecy), nec vi (force), nec precario (permission).

Question 27

S. 62 conversion of licenses:

Answer 27

License converted into legal easement by virtue of s. 62 in situations where, before the conveyance, the land to be benefitted was already occupied by another.

Wright v Macadam [1949]: Mrs Wright given permission as tenant by Mr Macadam to store her coal in a garden shed retained by Mr Macadam. Later fresh one year lease made, did not refer to shed. The fresh lease was a conveyance and operated to grant Mrs Wright a legal easement of storage. S. 62 had converted a pre-existing license into a legal easement.

Question 28

S. 62 requirements:

Answer 28

1. Capable of being an easements - Re Ellen;
2. Must be a conveyance - s. 205, writing;
3. No contrary intention;
4. Diversity of occupation, overruled by Wood v Waddington, “provided had always been continuous and apparent.”