L4 : Easements (rev notes)

Question 1

Validity - 4 criteria for a right to qualify as an easement

Answer 1

= Re Ellenborough Park (1956) (CA)

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

Question 2

Validity - Easement appurtenant to the estate or the land?

Answer 2

• CA in Wall v Collins says the land (but if granted to leaseholder only lasts for duration of the lease)
• Law Com disagrees : easement appurtenant to lease should be extinguished when merges back into reversion

Question 3

Validity - DO and ST must be ≠persons (3)

Answer 3

bcs imp to exercise rights against oneself

=> If A owns 2 pieces of land an walks across one to access the other: quasi-easement = a potential easement which could develop into an easement if the plots came into separate hand – see Wheeldon v Burrows

/!\ same person must not own and occupy the two tenements: possible for T to have easement over land occupied by L and possible for L during period of lease to have an easement over land occupied by T

Question 4

Accommodating the DT (rule)

Answer 4

Right must confer an advantage on the dominant land, not a personal adv to dominant O
=> ask whether any O of the land would consider the right advantageous

Question 5

Accomodating the DT (pb 1)

Answer 5

where claims confer adv to business carried out on the land:
- Hill v Tupper : exclusive rights to put boats on canal bordering ‘dominant’ land not an easement bcs didn’t benefit the land, only business Mr H was running on it
- ≠ Moody v Streggles: right to hang a sign pointing to a pub on neighbouring land = an easement

=> A’s explanation: common for land used as a pub to remain so for prolonged periods => business run on the land and land itself are inextricably linked

Question 6

Accomodating the DT (pb 2)

Answer 6

where land changes in character over time = impact of easement over ST changes

Attwood v Bovis Homes (2011) : land w/ benefit of drainage easement ceased to be agricultural bcs was developed - ag that easement should be restricted to the benefit conferred on land as it had been while the right was being acquired rejected, change in use didn’t end / restrict the easement

BUT ≠ result might have been reached if the change in use to the dominant tenement led to substantial increase of the burden or changed the nature of the burden (see British Railways Board v Glass)

Question 7

Capable of forming the subject matter of a grant (3)

Answer 7

3 relevant factor (Re Ellenborough) - consider whether the alleged easement is :

• too wide and vague (eg mustn’t involve matters of taste)
• inconsistent w/ proprietorship or possession of SO (mustn’t be deprived of possession or impose expenditure)
• a mere right of recreation and amusement

Question 8

Consistant w/ SO’s proprietorship - negative easements

Answer 8

Courts reluctant to recognise new negative easements (prohibiting SO from doing smth on his land rather than requiring him to allow DT to do smth on his land) = Phipps v Pears

Question 9

Consistant w/ SO’s proprietorship - expenditure

Answer 9

courts will generally not recognise easement involving expenditure (w/ exception of easement of fencing)

although possible to have an easement over smth which requires maintenance: DO can continue to make use of it even if SO ceases maintenance, bcs DO has right to go onto ST for maintenance

= Regency Villas v Diamond Resorts

Question 10

Consistent w/ SO’s proprietorship - possession - storage

Answer 10

Pb where easement deprives SO of use / possession of land

=> London & Blenheim Ltd v Ladbrooke Parks Ltd (1992): “the matter must be 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”

Question 11

Consistent w/ SO’s proprietorship - possession - parking

Answer 11

Batchelor v Marlow : ± establishing a ‘substantial interference’ test
=> court rejected exclusive right to park 6 cars for 9h every day of working week as easement bcs left P without any reasonable use for his land
=> doubted but still considered binding despite Moncrief in Polo Woods

Moncrief v Jamieson: test = whether SO retains possession and control of ST, rather than whether SO left without any reasonable use
=> HL recognised that vehicular right of way to access beach house across ST could included right to park
/!\ Scots law

Question 12

Consistent w/ SO’s proprietorship - rights to passage of something (pipes, electricity etc) (3)

Answer 12

Rance v Elvin (1985) (CA): right to passage (≠supply) of water is a valid easement  oblº on ST not to supply water, only not to hinder its passage through pipes

/!\ no general right to water percolating through soil (Bradford v Pickles), easement (if valid at all) must be in relation to water flowing through specific channels

Same for right to air: no general right to passage of air = Webb v Bird (1861) BUT claim to air flowing in a defined channel can amount to an easement – eg rights in respect pf ventilation ducts = Wong v Beaumont Property Trust Ltd (1965)

Question 13

Rights of recreation and amusement (3)

Answer 13

Requirement established / approved in Re Ellenborough

Yet Re Ellenborough itself involved a right ± of amusement (right to use garden) - but still recognised as a valid easement (bcs ± any O would consider that access to a garden improved a house)

in Regency Villas, SC held that possible for right of recreation and amusement to ‘accommodate’ DT (and so be an easement) where DT is land used for recreation and amusement (eg holiday apartments can be benefited by right to use leisure complex)

Question 14

Methods to acquire an easement (4)

Answer 14

• Express grant or reservation
• Implied grant or reservation
• ‘Express’ grant under s62 LPA 1925
• Prescription

Question 15

Acquisition - formalities for expressly created easement to take effect as a legal easement

Answer 15

• s1(2) LPA 1925 = granted for period equivalent to fee simple or term of years
• s52 LPA 1925 = created by deed
• if RL : s27 LRA 2002 = disposition must be completed by registration = protected by entry of a notice on the register

Question 16

Acquisition - express grant

Answer 16

agreement btw 2 Os who already hold separate properties => O of ST executes deed granting easement to O of DT + applies to enter notice on register

Question 17

Acquisition - express reservation

Answer 17

where land divided on sale, V and P may each wish to enjoy rights over the other’s property

=> P gets E&P by express grant (generally included in deed conveying legal estate), while V retains rights by express reservation (rights are reserved in deed conveying legal estate)

Question 18

Acquisition - implied grant & reservation (2)

Answer 18

Easier to establish an implied grant (in favour of P) than implied reservation (in favour of V)

/!\ implied G / R has to be tied to a conveyance = always consider sitºat time of the conveyance (not how it evolved)

Question 19

Acquisition - implied grant (3)

Answer 19

(a) easements of necessity
(b) easements taken to be intended by the parties
(c) easements under the rule in Wheeldon v Burrows (1879)

Question 20

Acquisition - implied grant - necessity

Answer 20

= easements which are so essential to the enjoyment of the land that the land cannot be used without the easement (eg land which is totally inaccessible without an easement of way)

authority = Wong v Beaumont Property Trust (1965) (CA)

/!\ overlap w/ common intention (pointed out in Nickerson v Barraclough

=> A’s suggestion for ≠: necessity = land can’t be used at all VS intention = land can’t be used for the purpose intended by the parties at the time of grant

Question 21

Acquisition - implied grant - common intention

Answer 21

= easement which is necessary for the land to be used for the purpose intended by parties at time of grant

Authority = Pwllbach Colliery Ltd v Woodman (1915) (HL) : possible to imply grant of an easement based on common intention, but common intention = that of parties at time of grant

Question 22

Acquisition - implied grant - quasi easements & Wheeldon rule

Answer 22

Quasi-easement* can be implied into conveyance as an easement if it was
(i) continuous and apparent,
(ii) necessary for the enjoyment of the property conveyed and
(iii) enjoyed by vendor when he owned both DT and ST

*quasi easement = where landowner derives benefit from one piece of their land over another  can become easement if benefited pt of land is acquired by someone else

Question 23

Acquisition - Implied reservation

Answer 23

E can arise by implied reservation in the following cases:
(a) necessity
(b) intended by the parties

/!\ rule in Wheeldon only applies to implied grant, not implied reservation

=> Courts generally not v willing to accept a claim for acquisition of profit by implied reservation bcs of rule that documents are to be construed strictly against the grantor (presumed V is in stronger bargaining position so can reserve whatever he wants, failure to do so is his pb )

Question 24

Acquisition - s62 LPA 1925 (operation)

Answer 24

= operates to pass any existing easement or profit that benefit the land conveyed, no need to mention them in the conveyance

=> conveyance is ‘deemed to include’ existing easements, rights and privileges

Question 25

Acquisition - s62 LPA 1925 (interpretation)

Answer 25

s62 LPA 1925 interpreted by the courts in such a way that it is capable of creating new easements in favour of P = a conveyance which does not exclude s62 will convert (some) quasi-easements and licences into legal easements (or profits)

Question 26

Acquisition - s62 LPA - conversion of quasi easements

Answer 26

To be converted into an E, QE must be ‘continuous and apparent’ and have been in use at the time of conveyance – no requirement that it be necessary for reasonable enjoyment of the property

Question 27

Acquisition - s62 LPA - conversion of licences

Answer 27

= where, before conveyance, land to be benefited was already occupied by someone other than the grantor, and occupier permitted to undertake some activity on other land owned by grantor => on conveyance, permission is converted into easement binding on land retained by grantor

=> eg Wright v Macadam (permission to store coal converted into easement upon grant of a new lease)

/!\ this effect of s62 a bit surprising – words of the provision suggest licence should pass as licence rather than proprietary easement – but adopted since 19th c in similar provisions + recognised by P in LRA 2002, s27(7) – always open to landowner to exclude s62 in conveyance

Question 28

Acquisition - s62 LPA - existing easements

Answer 28

existing leasehold easement can be converted into freehold easement

Wall v Collins: issue = what happens to easements enjoyed by tenant when tenant acquires reversion = becomes freehold owner
=> CA considered that conveyance of freehold to former T converted former easement (granted for a term of year) to one unlimited (tied to fee simple)

/!\ Fact that right being ‘converted’ by s62 is already an easement makes no ≠ bcs why should holder of easement = proprietary right be in worse position than mere licencee (?)

Question 29

Acquisition - s62 - condition for successful claim (2)

Answer 29

To claim an easement under s62
- the right claimed must be capable of being an easement / profit = Phipps v Pears
- there must be a conveyance on which s62 can operate = written doc (other than will) which creates or transfers a legal estate or interest in land
- the conveyance must not express a contrary intention (= open to grantor to exclude operation of s62 altogether or as regards certain rights)

Question 30

Acquisition - s62 - pb of informal short leases

Answer 30

pb case = short lease (created informally under s54(2))
- amounts to a conveyance for the purpose of s62 if grant made by a written doc (as it was in Wright v Macadam)
- BUT oral lease doesn’t constitute a conveyance (see Rye v Rye (1962) : s205 def requires a conveyance to be an ‘instrument’ so in writing)

Question 31

Acquisition - prescription

Answer 31

= acquiring easement of profit by long use – only need to know that it exists

Question 32

Enforcement - URL

Answer 32

Legal easements & profits = legal interests so good against the world = binding on all acquirers

Equitable easements & profits:
- if created before 1926, apply notice rules
- if created after 1925, must be registered as a land charge to bind acquirer

Question 33

Enforcement - RL - as OI - first registration

Answer 33

First registration : all legal E & P are overriding interests on first registration = s11-12 + Sch 1 §3 LRA 2002

Question 34

Enforcement - RL - as OI - disposition of a registered estate

Answer 34

easement will be overriding under s29 & sch 3 §3 LRA 2002 IF
(1) it is a legal interest, and
(2) it arises by by implied grant or reservation, or by prescription, or under LPA 1925 s62*, and
(3) it satisfies one of the following conditions:
(a) it is registered under Common Act 2006 (or predecessors), or
(b) the acquirer actually knew of its existence, or
(c) its existence would’ve been obvious on a reasonably careful inspection of the land, or
(d) it has been exercised within the period of one year ending w/ date of disposition in question

*If created expressly, easement must be entered on register (as notice) to take effect as legal easement, so no need to be overriding

Question 35

Enforcement - RL - protection by notice

Answer 35

Possible to protect easement by entry of a notice on register of ST

= a requirement for expressly created easement to take effect as legal easement bcs must be ‘completed by registration’ under s27 LRA 2002

Also a good idea for other types of easements, esp equitable easements = cannot bind P of ST unless they are protected by notice

Question 36

Remedies - abatement

Answer 36

= self help : ‘removing’ whatever gets in the way of exercise of right

=> DO doesn’t need consent of SO to do that BUT mustn’t use unreasonable force or injure anyone (although breaking through fence ok)

=> eg easement of support doesn’t require SO to maintain wall : DO is allowed to enter neighbour’s land and carry out necessary repairs to prevent collapse = Jones v Pritchard (1908)

Question 37

3 ways of extinguishing an easement :

Answer 37

DT and ST come into the same hands
/!\ where one person owns fee simple of DT and leasehold of ST (or vice versa), easement not extinguished, only suspended for duration of the lease

• Release: express = by deed or informal = if releasing O’s conduct makes it inequitable to go back on his word
• Abandonment
  /!\ Mere lack of use not enough (no oblºto use one’s rights), esp if O can explain lack of use - but prolonged non-use can be evidence of abandonment