Nature of Easements

Question 1

What is an easement

Answer 1

An incorporeal hereditament to a view

• The content is not specific, it just needs to fall within the confines of the case law
• They are rights to use another’s land in ways which enhance the use of one’s own land
  
  • Incorporeal hereditament
  • Servitude
• A right that is attached to the dominant land and exercisable over the servient land of another
  
  • Adjacent land
• Not an estate in land – no right to possession, not exclusive of one’s own land
  
  • Not an ownership of land

Question 2

Examples of easements

Answer 2

• Right of way – yes, always
• Right to store goods – yes and no
  
  • Wright v Macadam; Grigsby v Melville
• Right to nail trees to a wall – yes
  
  • Hawkins v Wallis
• Right to park – yes or no
  
  • Hair v Gillman; Copeland v Greenhalf
• Right to use a letter-box – yes
  
  • Goldberg v Edwards
• Right to stroll (on paths) in garden – yes
  
  • Re Ellenborough Park
• Right to use a neighbor’s lavatory – yes
  
  • Miller v Emcer Products
• Right to recreation – yes and no
  
  • Regency Villas v Diamond Resorts
• Right to hang a sign advertising one’s business – yes
  
  • Moody v Steggle
• Right to hang a clothesline across neighbour’s garden – yes
  
  • Pallister v Clark
• Right to oblige neighbour to maintain fence – yes
  
  • Jones v Price
• Right to mix muck and manure for spreading on neighbouring farm – yes
  
  • Pye v Mumford

Question 3

What is not an easement

Answer 3

• Right to privacy – no
  
  • Browne v Flower
• Right to wander at will – no
  
  • Mounsey v Ismay
• Right to television reception – no
  
  • Hunter v Canary Wharf
• Right to protection from weather – no

Question 4

Advantages of easements

Answer 4

Facilitates exploitation of both servient and dominant land

More important as density of building increases

Some land would be unusable without them

Question 5

Disadvantages of easements

Answer 5

• Often unclear; most commonly litigated
• Can decrease the value of the abutting land
• Can arise in unintended ways
• Could facilitate overdevelopment by facilitating the exploitation of dominant land until it is too much
• Imposes burden on servient tenement
  
  • The courts are very conservative in their approach to recognising easements because they know the more there are, the more they will increase burdens on servient lands in unintended ways

Question 6

What is not an easement

Answer 6

• Public rights of way
  
  • Does not depend on owning adjacent land
• Natural rights (e.g. rights of support of land)
• Profits à prendre (the right to take something from land)
• Possessory rights
• Licences (easements are proprietary rights in land and cannot be revoked by the grantor)
  
  • They are proprietary rights
  • Some licenses can become unintentionally easements through a mechanism in the LPA

Question 7

Re Ellenborough Park

FACTS + QUESTIONS

Answer 7

FACTS: the park facing a crescent building belonged to someone who did not live in the building. The home owners claimed that they had a right to use the park

QUESTION: whether the right to stroll in the park was a proprietary right

Question 8

Re Ellenborough Park
Defining characteristics of an easement

Answer 8

There must be a dominant and servient tenement (land)

Must be owned and occupied by different people

Must “accommodate” dominant tenement

Must be capable of forming the subject matter of a grant

Question 9

Other requirements of an easement

Answer 9

• Must be within general nature of rights recognised as easements [Dyce v Lady James Hay; Hunter v Canary Wharf]
• Must not exclude the servient owner from his own land – the ouster principle [Copeland v Greenhalf]
• Must not impose excessive burden on servient owner
  
  • Ancillary use
  • Change of use
  • Increased use

Question 10

Servient land must accomodate the dominant land

Answer 10

• The use claimed must accommodate the dominant land
• Must be connected with “normal use and enjoyment [Lord Evershed MR in Ellenborough]”
• Not for “mere recreation [Lord St Leonards in Dyce v Lady James Hay]”
  
  • “A servitude to walk or rest, for purposes of recreation, health, and exercise, not merely along a footpath, but over any part of a large strip of ground, within the enclosed domain of a private gentleman, is not sanctioned by the law … [that would be] a right inconsistent with property”
  • But note that the “categories of easements are not closed”
    
    • It was denied that there was a right to roam freely at will – an uncontrolled use is frowned upon, which is what their lordships are trying to contain as it would be too intrusive and burdensome on the servient owner
• Until 2018, it was recognised that mere recreation could not constitute an easement [Re Ellenborough]
• In Re Ellenborough, Lord Evershed is saying that there is a difference between mere recreation having no utility or benefit and one which does

Question 11

Defining accomodation

Answer 11

• Hill v Tupper: C who owned a strip of land next to a canal claimed that he had an exclusive right to put pleasure boats on the canal for hire
  
  • The court denied it could be an easement – he was claiming a monopoly
  • The dominant land was ancillary to the use – the easement should be ancillary to the dominant land (the whole purpose of an easement must be to facilitate the use of the dominant land)
• Moody v Steggles: concerned the right to put up a sign on an adjacent building because the pub was set back on the road so customers can see
  
  • The use was a means to an end of making the fullest use of the dominant property (the easement was ancillary to the business)
• Accommodation means “reasonably necessary” for the better enjoyment of the dominant land
  
  • You cannot claim an easement on the basis that it will increase the value of the property – it must be connected with the use of the property

Question 12

Regency Villas v Diamond Resorts

FACTS

Answer 12

Concerned broom park estates. A company had bought it and converted the mansion into a country club and leased timeshare flats. On the grounds, there was another house that had been separated and sold off, but came back into ownership of Diamond Resorts and they sold it to Regency Villas (which was management corporate holding the property for an unincorporated association; they held it as a freehold). Positive burdens cannot be accepted as freehold covenants. When the house was hold to RV, it came with a statement that the buyers will have the right to use all the facilities (nothing about charging)

At first, it was held it cannot be a covenant because that would impose a positive burden, and positive burdens cannot be accepted as freehold covenants

People bought the timeshare flats so that they could use the facilities (similar to Hill v Tupper, where the dominant land is ancillary to the use)

Question 13

Regency Villas v Diamond Resorts

PROBLEMS

Answer 13

• If there is no easement, then the reason for buying the timeshare is otiose
• If there is an easement, then major management obligations pose serious burdens on servient owners
• It was argued that it could not be an easement because
  
  • Purely recreational
  • Step-in rights to allow the dominant owner to maintain the facilities and such high-level maintenance would oust the servient owner from its own

Question 14

Regency Villas v Diamond Resorts

QUESTIONS

Answer 14

Did the rights accommodate the dominant land?

Could they form the subject matter of a grant?

Question 15

Regency Villas v Diamond Resorts

HELD

Answer 15

per Lord Briggs

• Distinguished Hill v Tupper;
• “Providing that the rights are for the benefit or utility of the dominant tenement as such, it matters not that their enjoyment may be a primary reason why persons are attracted to acquire rights in the dominant tenement”
  
  • Although this was “breaking new ground … the advantages to be gained from recreational and sporting activities are now so universally regarded as being of real utility and benefit to human beings that the pejorative expression ‘mere right of amusement possessing no quality of utility or benefit’ has become a contradiction in terms”

Question 16

Regency Villas v Diamond Resorts

SUBJECT MATTER OF GRANT

At first instance and CA

Answer 16

• At first instance
  
  • Rights expressed in sufficiently clear language
  • The servient owners retained enough rights denied to the claimants and so could not be regarded as ousted
  • Although no precedent for such rights, categories are not closed
• Upheld by CA, but contained the right to recreation, as not “free-ranging … or an easement at will” it is for a specific type of use
  
  • The right to wander at will is still not an easement

Question 17

Regency Villas v Diamond Resorts

SUBJECT MATTER OF GRANT

SC

Answer 17

Plain wording meant intention to grant easement; ut res magis valeat quam pereat – it is better to validate a thing than to invalidate it

Single comprehensive right to us a complex of facilities

Minimal maintenance or step-in rights did not oust servient owner

Question 18

Regency Villas v Diamond Resorts

DISSENTING SC JUDGMENT

Answer 18

• Lord Carnwath – the right claimed was not viable without the servient owners taking on extensive duties of management, and therefore amounted to a new form of property right in the form of a country club membership
  
  • Expensive and over burdensome

Question 19

Must be a definite right

Answer 19

• The right must be sufficiently definite (“capable of forming the subject matter of a grant”)
• If the right claimed is so general that it would prevent development on the servient land, the courts will not accept it as being definite enough for being the subject matter of a grant
• No general easement to light [Browne v Flower]
• No right to tv reception [Hunter v Canary Wharf]
• No protection against the weather [Phipps v Pears]
• Dyce v Lady James Hay: no right to wander at will (ius spatiandi)
  
  • Re Ellenborough: walking on or over those parts provided for such purpose (pathways) but not “trampling at will and plucking flowers”

Question 20

Must be within the general nature of rights recognised as easements

Answer 20

• Containing numerous clausus
• The right must be within the general nature of rights traditionally recognised as easements [Hunter v Canary Wharf]
• Dyce v Lady James Hay: “the law of servitude, no doubt, accommodates itself to the changing circumstances of society, and a new process or invention may be turned into servitude”
  
  • The categories are not closed, new types of activities may be considered as easements as long as they comply with the requirements in Re Ellenborough

Question 21

Ouster principle

Answer 21

• The easement must not exclude the servient owner
• When the use of the servient land is so extensive that it effectively prevents the servient owner from using his own land
• Copeland v Greenhalf, per Upjohn LJ: “[continually parking cars] is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner”
• Easements cannot give dominant owner possession of servient land.
  
  • The servient owner must have reasonable use
• It is always a matter of degree

Question 22

Miller v Emcer Products

FACTS

Answer 22

Tenant of offices had right to use two lavatories on upper floors occupied by third party. In this case, the tenant, who had not been given a key, had claimed that he should be allowed into possession of the lavatories:

Question 23

Miller v Emcer Products

HELD

Answer 23

The landlords did not contract to give possession to the tenant of the lavatories, but only the right to use them. Landlord could not in fact give possession of the loos, as the upper floors were leased to someone else, but he could give a licence or an easement to use them

per Lord Evershed MR: there is a distinction between use and possession

Question 24

Grisby v Melville

Answer 24

• Claim to be able to store your stuff in your neighbour’s basement
• Russel LJ: this use amounted to an exclusive right for the seller, and thus was too extensive
• Brightman J: this amounted to an exclusive right to use the cellar, so was too extensive to exist as an easement. He sought to distinguish Wright v Macadam on the basis that it was not clear from the judgment in that case whether or not the right to store coal was an exclusive one. Considering the matter to be one of degree, he preferred the approach taken in Copeland, where this issue had been more fully discussed
  
  • The degree to which such storage ousts the servient owner from the premises is the main question

Question 25

Degree

Answer 25

• London v Blenheim Estates Retail Parks per Judge Baker QC (at first instance): “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. Hence I do not accept the submission that Copeland v Greenhalf was wrongly decided.”
  
  • The courts are more willing to recognise that some claims of an easement to park are acceptable, but it must be one of degree
• Batchelor v Marlow: parking Mon-Fri, 9-5 leaves owner with virtually no access.
• Hair v Gillman: parking in unspecified spaces is alright because it is a matter of degree
  
  • Chadwick LJ: “[t]he authorities fall on one side or another of an ill-defined line between rights in the nature of an easement and rights in the nature of an exclusive right to use or possess.”
• Lord Scott (obiter) in Moncrieff v Jamieson: the right of possession is usually established evidentially by the actual use (occupation)

Question 26

Must not impose an excessive burden

Ancillary use

Answer 26

Whether easements could be used for ‘after-acquired’ land

Peacock v Custin, per Schiemann LJ: “The right to use a right of way is determined by the terms of the grant, specifying the dominant tenement for the purposes of which the right is created… The right is not to use the way for the purposes of benefiting any property…”

Question 27

Das v Linden Mews

Answer 27

An easement could benefit “after-acquired” land only where the use of the non-dominant land is ancillary to the dominant tenement.

Here, claimant already had access to house over original easement, and access to car park at end was only to benefit that land as car park, so use was not ancillary to original grant.

Question 28

Macepark (whittlebury) v Sargeant

Answer 28

Gabriel Moss QC: “With regard to the question of what ‘benefits’ the non-dominant land, where the access makes the use of the non-dominant land profitable, that access is being used to benefit the non-dominant land [and will not be allowed]. For example, where the access, by an arrangement between the owner of the dominant land and the owner of the non-dominant land, is used to enable a profit to be made out of the use of the non-dominant land, there is a benefit to the non-dominant land.”

Question 29

Change of use

McAdams Homes v Robinson

Answer 29

Per Neuberger LJ: Test is “whether the development of the dominant land … represented a ‘radical change in the character’ or a ‘change in the identity’ of [the dominant land] … as opposed to a mere change or intensification in the use of the [dominant land]; (ii) whether the use of the [dominant land] as redeveloped would result in a substantial increase or alteration in the burden on the servient land …”

Question 30

Increased use

Answer 30

• British Railways Board v Glass* per Harman LJ: “A right to use a way for this purpose or that has never been to my knowledge limited to a right to use the way so many times a day or for such and such a number of vehicles so long as the dominant tenement does not change its identity. If there be a radical change in the character of the dominant tenement, then the prescriptive right will not extend to it in that condition.”
• Jelbert v Davies* per Danckwerts LJ: “The test must be whether the interference is so substantial as to interfere with the rights of other persons in an unreasonable manner. It cannot be right that the others should be swamped by the traffic created by the plaintiff so as to amount to a legal nuisance. It is impossible to quantify this in figures, particularly as the problem relates to the future.”