Easements; Capability Rule Flashcards
What is the overview of a test for a capable easement?
- The right must be capable of being an easement and must satisfy the Re Ellenborough Park Test
- Right must not be prevented from being an easement by one of the disqualifying factors. These are:
- additional compulsory expenditure by the servient owner
- use which amounts to exclusive possession
- permission
- The right must have been acquired as an easement. This can be done in one of 3 ways :
- complying with statutory formalities for an express grant of reservation
- acquired impliedly by one of the recognised methods
- acquired by prescription/ long use
What are the essential characteristics of an easemenet set out in Re Ellenborough?
There must be dominant and servient tenement
The right must accommodate the dominant tenement
The dominant and servient land must be owned by different people - diversity of ownership
The right must lie in grant
What does it mean for there to be a dominant and servient tenement?
Two identifiable pieces of land - one with benefit and one with burden
Right cannot be exercised independently from the land - it would be a license or a personal right
What does it mean for the right to accommodate the dominant tenement?
There must be a direct benefit on the dominant tenement
An easement which simply facilitates the running of a business from the land may not even be an easement - eg easement which was a right to put boats into the canal that adjoined the claimants land was not an easement as it did not benefit the land itself - just the business which the claimant was carrying out on the land itself.
How can you test if there is a benefit on the land stemming from the business for there to be an easement?
If there is a nexus between the land and the business from the land, a right that benefits the business will also benefit the land.
What does it mean for there to be diversity of ownership?
Dominant and servient land must be owned by different people
Benefits enjoyed over your own land are called quazi easements and can become easements if the land is ever partiioned.
If the dominant and servient land fall into the hands of the same owner the easement will be extinguished
What does it mean for the right to lie in a grant?
The right must be capable of forming a subject matter of a deed?
When can a right form a subject matter of a deed?
Must be granted by a capable grantor to a capable grantee:
- over 18 years
- own a legal estate
- must be to a certain person and not eg a group of village residents
Must be capable of a reasonably exact description:
- must be capable of description and certainty of some sort
Must be judicially recognised:
- right of way
- right of drainage/ pipelines
- right of support
- right to use sporting facilities
- right to park
- right to storage
(list is non exhaustive but a new easement cannot be negative in nature)
What are the 3 disqualifying factors which prevent an easement being an easement?
The exercise of the right must not amount to exclusive possession of the servient land.
The exercise of the right by dominant owner must not cause the servient owner additional unavoidable expenditure.
The exercise of the right must not depend on obtaining permission from the servient owner.
What are the two tests which help to determine if there is exclusive posession?
Ouster principle - Batcherol v Marlow
Possession and control test - Moncrieff v Jamieson
What is the ouster principle?
Does the servient owner still have a reasonable use of land?
eg if the use of land is prevented for 12 hours per day = this is unreasonable
What is the possession and control test?
THIS IS ONLY PERSUASIVE AS DECIDED IN SCOTLAND
Does the servient land owner retain ultimate possession and control of the servient land, subject to reasonable exercise of the use of the right?
What is the position for parking rights?
Providing the servient landowner retains control of the space and is able to do anything with it (eg paint it) expect interfere with the right (ie the parking/storage), then the right will probably not be disqualified in the circumstances.
What is the no additonal expense rule?
If the easement carries a positive obligation on the servient owner to spend extra money then it is not an easement
Servient owner does not have to carry out any repairs to allow the dominat owner to enjoy the easement - merely have to allow them onto the land
Why does requiring permission disqualify the easemet?
Because an easement should be used as of right and not require permission
