Property - Easements

Question 1

Property - Easements - Steps

Answer 1

• STEP 1: Define an easement
• STEP 2: Is t_he_ _right cap_able of being an easement?
• STEP 3: Next, how has it been acquired as an easement?
• STEP 4: Has the use of the right changed or become excessive?
• STEP 5: Is it legal or equitable?
• STEP 6: Can it be enforced by or against successors-in-title?
• STEP 7: Has it been extinguished?
• STEP 8: Conclusion and remedies:

Question 2

Property - Easements - Define an easement

Answer 2

• An easement is a right benefiting one piece of land (the “dominant” tenement) that is enjoyed over another landowner’s land (the “servient” tenement).
• An easement may be positive, in that it allows the owner of the dominant land to do something on the servient land, such as use a road. An easement could also be negative, in that it limits what the owner of the servient land may do on the servient land.
• State that the issue is whether the easements are enforceable.
• You might find it helpful to do a quick diagram in your plan**. This will prevent you getting any terms confused. For example:
  
  • Servient tenement (burdened land):
    
    • Original covenantor:
      
      • MrA
    • Successor-in-title covenantor:
      
      • Mrs B
  • Dominant tenement (benefited land):
    
    • Original covenantee:
      
      • Mrs C
  • Successor-in-title covenantor:
    
    • Mr D

Question 3

Property - Easement - is t_he_ _right cap_able of being an easement?

Answer 3

• Go through the Re Ellenborough Park criteria. All criteria must be met:
  
  1. Dominant (land benefited by the easement) and servient (land burdened by the easement) tenements must exist (**London & Blenheim Estates v Ladbroke).
  2. The easement must accommodate the dominant tenement__, i__.__e__. benefit the dominant tenement by improving it or making its use more convenient in some way connected with the normal use of the property (**Re Ellenborough Park). The dominant and servient tenements must be sufficiently proximate, i.e. nearby, even if the properties are not direct neighbours (Bailey v Stephens).
  3. P_rior_ diversity of occupation, i.e. tenements must be owned by different people (Metropolitan* *Railway* *v* *Fowler; Roe v Siddons)*. Note that subsequent case law has cast doubt on how essential this requirement is: under the rule in *Wheeldon* *v* *Burrows* it is possible to create a ‘quasi easement’ benefiting one piece of land over another piece of land where both piec_es_ _of_ _land_ _are_ _owne_d by the same person (this can include rights of way - W*ood* *v* *Waddington) (see* *Step* *3* *(iii))**.
  4. Capable of lying in grant, i.e. of being the subject matter of a deed__. Grantor and grantee must own the dominant and servient ten_ements_ and be sui juris legal personalities. The right must be capable of reasonably exa_ct_ description, e.g. it can be pointed to on a plan. Examples of rights capable of lying in grant are:
     
     • Rights of way (Borman v Griffiths)
     • Right to water in a defined channel
     • Rights of light
     • Right to air in a defined channel (Wong* *v* *Beaumont)
     • Rights of support
     • Rights of storage (Wright v Macadam**)
     • Rights to use a golf course, swimming pool and tennis court (Regency Villas v Diamond Resorts)
     • Rights of signage (Moody* *v* Ste*ggles)
  5. The courts will not recognise new negative easements (Hunter* *v Canary* *Wharf, but they may recognise new positive easements (Regency Villas).
• Additional criteria to consider:
  
  • The covenant must not require expenditure by the servient tenement owner (but note the decision in Rance v Elvin**, which concerned a right to allow water through pre-existing pipes where the servient tenement owner was legally obliged to pay th_e water me_ter in full for both owners - the court held that this was allowe_d_ _because the dom_inant tenement owner was liable on a quasi-contract to reimburse him).
• The covenant must not amount to exclusive possession (Grigsby v* *Melville* *-* right to store _items_ in a cellar was not an easement). An easement to park your car will be allow_ed_ _where_ there is a choice of parking spaces (*Hair* *v* *Gillman*) or where the serv_ient_ _o_wner is not deprived of possession and control over the *sp*aces *(Moncrieff v Jamieson). See also: Batchelor v Marlow and Kettel & Ors v Bloomfold Ltd**.
• The covenant must not depend on permission by the servient tenement owner (Green* *v* *Ashco* *Horticultural)**.

Question 4

Property - Easement - how has the right been acquired as an easement?

Answer 4

• B_y_ express acquisition when it was granted or reserved? (see Step 5 below)
• Or by implied acquisition when granted or reserved? In one of the following ways:
  
  1. Necessity: must be completely impossible to use the land without the easement (Manjang* *v* *Drammeh), not just advantageous - so a right of way could be impliedly acquired by necessity, but a right to sewerage couldn’t be (Pryce v McGuiness).
  2. C_ommon_ intention: where both parties intend the property to be used in a specific way (Wong* *v* *Beaumont). iii)
  3. Under the rule in Wheeldon v Burrows (this only applies to grants): the easement will be impliedly granted if immediately prior to the sale of one of the tenements there was a common owner-occupier of both tenements, and if it can be shown that it is:
     
     • continuous and apparent, i.e. obvious (like a worn pathway) (Sovmots v Secretary of State for the Environment);
     • necessary to the reasonable enjoyment of the property-not as strict as necessity as in (i) above, but must be more than simply beneficial (in Wheeler v JJ Saunders**, a pig farm was not allowed two rights of way, even though one was rutted); and
     • i_n_ use at the date of the transfer.
  4. s.62 LPA1925 can also be used to convert quasi-easements (easements where thetwo tenements are owned by the same person) on sale of one of the tenements into full easements. Can be expressly excluded (s. 62(4)). Likely that prior diversity ofownership is not required (Platt v Crouch).
• Orbyprescription? If the easement has been in continuoususe for 19 years + 1 day without interruptionor protest then it will be impliedly acquired(Prescription Act 1832).
  
  1. The use must be known to the landowner (BarneyvBPTruckstopsLtd)
  2. After twenty years of continuous use there is a judicial presumption of a lost modern grant - a fictitious common law construct allowing the court to enforce the easement (seeOrmev Lyons).

Question 5

Property - Easement - Has the use of the right changed or become excessive?

Answer 5

If so,theuser can be restricted to the extent that the right was used at the time that theeasementwasgranted. In Jelbert v Davis a neighbour changed his farm into a caravan park, so his right of way over neighbouring land was restricted.

Question 6

Property - Easement - is it legal or equitable?

Answer 6

• This is determined by the document in which it is included, e.g. a 10-year legal lease.
• If it has be_en expressly acqu_ired__, to be legal it m_ust_ be (if impliedly acquired formalities not necessary):
  
  1. Created for the duration of the freehold or leasehold;
  2. Acquired by deed (s. 52 LPA 1925; s. 1 LP(MP)A 1989); and
  3. Registered (s. 27(2)(d) LRA 2002).
• If the above formalities are not fulfilled, if it is a contract for the future grant of an easement, or if the grantor only has an equitable estate, it will instead be equitable. A valid contract is necessary (s. 2 LP(MP)A 1989).

Question 7

Property - Easement - Can it be enforced by or against successors-in-title?

Answer 7

• If the dominant land has not changed owners, then the original covenantee can still enforce as he retains the benefit. If the land has changed owners, the successor-in-title will get the benefit, because the benefit will automatically pass to a successor-in-title of th_e_ _dominant_ _t_enementbywayofs. 62 LPA 1925.
• If the servient land has not changed owners the original covenantor will retain the burden, but if it has changed owners consider the following.
• For registered land, the burden passes if:
  
  1. It is a legal and expressly acquired easement, under s. 27(2)(d) LRA 2002; or
  2. It is a legal easement acquired impliedly or by prescription, it is capable of being an overriding interest under Sch. 3, Para. 2 LRA 2002. It does not need to be registered, and will bind if it is known about, obvious on a reasonable inspection, or exercised within a year.
• If it is an equitable easement then it should be protected by a notice on register of the servient tenement (s. 32 LRA 2002).
• Fo_r_ unregistered land, the burden passes if:
  
  1. It is legal and acquired in any way, as legal rights bind the world.
• Equitable easements must be registered as a _D__(_iii) Land Charge at the Land Charges Department in order to bind purchasers for value. If it was created pre-1926 and is still unregistered (which is unlikely) then consider the Doctrine of Notice.

Question 8

Property - Easement - Has it been extinguished?

Answer 8

• Th_e_ easement can be extinguished b_y_ _express agreemen_t; or
• By implied release where it has been abandoned, i.e. lack of use coupled with an act demonstrating intention to abandon:
  
  • Swan v Sinclair
    
    1. A right of way unused for 50 years and bloc_ked_ by fences was held to be abandoned. compare with**:
  • Benn v Hardinge
    
    1. A right of way unused for 100 years but merely overgrown was not abandoned.

Question 9

Property - Easement - Conclusion and remedies

Answer 9

• Is the particular right capable of being an easement, and if so, has it been validly acquired and the formalities complied with?
• If so, and there are no other issues, it can be enforced by the original or successor covenantee against the original or successor covenantor of the servient land. An injunction or damages will be granted.