Property Law, Easements

Question 1

Definition of an Easement

Answer 1

Proprietary right. Held by dominant tenement over servant tenement. Can be positive or negative

Question 2

Key Case, Uk and Ire

Answer 2

“RE Ellenborough Park” and “Carroll”

Question 3

5 Criterion under “REEP”

Answer 3

Must be dominant and servient tenement. Easement must accommodate dominant tenement. No union of ownership unless leasehold with exclusive possession. Right must be capable of forming subject matter of grant. Right must not excessively infringe upon property rights of servant owner.

Question 4

Tell me more about S1

Answer 4

Easements are “appurtenant” rights. Cannot exist in gross. Thus, a dominant and servient tenement is required.

Question 5

Relevance of “Latimer” to s1

Answer 5

“Latimer” states that dom and servant tenement need not be “directly adjacent”, but instead “sufficiently approximate” to enable the accommodation of the easement.

Question 6

Tell me more about S2

Answer 6

Easement must “confer a benefit upon the dom tenement”. Must make it a “better, and more convenient property”.

Question 7

When can an easement arise

Answer 7

Easement can only arise out of the connection to the “natural enjoyment of the property”.

Question 8

Provide an example of “natural enjoyment of the property”

Answer 8

“REEP”- communal garden and residential house
“Moody”- advertising of business and business

Question 9

Provide a non-example of “natural enjoyment of the property”

Answer 9

“Hill”- exclusive right to place pleasure boats on canal does not benefit business property, only nature of business.

Question 10

Tell me more about S3

Answer 10

Cannot have union of ownership. Cannot have an easement over oneself, unless its a leasehold occupied by a 3rd party with exclusive possession.

Question 11

Tell me more about S4

Answer 11

Most problematic characteristic. Right must be “definite in its purpose”, “describable with relative certainty” and the courts must “recognise the right as capable of being an easement”.

Question 12

What are the issues with S4

Answer 12

Legal capacity and identity, clarity of content, accommodation of dom tenement, novel/impractical easements.

Question 13

Provide some examples of a failure to fulfil s4

Answer 13

“Hill”- personal right not easement.
“Copeland”- right to park not an easement
“Aldred”- right to goof view too vague
“Phipps”- right to protection against the elements too vague

Question 14

Provide some examples of a successful fulfilment of S4

Answer 14

“Moncrieff”- right to park (controversial and facts specific)
“Regency Villas”- right to recreational facilities
“Allen”- right to light

Question 15

Tell me more about S5

Answer 15

Cannot go so far as to deem servient tenement property rights “illusory”. Cannot excessively infringe upon servant’s property rights.

Question 16

Provide some examples of a failure to fulfil S5

Answer 16

“Copeland”- Right to park claimed was basically AP, completely blocked servant
“Arnold”- Right to light cleaned would’ve meant D’s property had to move.

Question 17

Provide some examples of a successful fulfilment of S5

Answer 17

“Redmond”- Right of way and right of deposit, only affected borders of servants lands and his pits.
“Moody”- Right to advertise only affected servant marginally
“Regency Villas”- Right of recreation was preexisting, no affect on servant

Question 18

What case established that the dominant tenement must cover all maintenance and costs of easement

Answer 18

“Jones v. Pritchard”

Question 19

How is an easement acquired/formed

Answer 19

Express grant, reservation, implication by necessity, implication by principle.

Question 20

Tell me more about express grant and reservation

Answer 20

EG- On sale or lease of land, easement may be granted.
Reservation- Seller of land may want to “reserve” certain rights over it.

Question 21

Tell me more about implication by necessity

Answer 21

Right arises as it is necessary for the reasonable use of the property (not even for reasonable enjoyment, just use), see “Wong” and ventilation.

Question 22

Tell me more about implication by principle

Answer 22

Right arises at the 3rd party was denied something it was previously entitled to under contract. See “Regency villas” and recreational facilities.

Question 23

What 2 things have to be fulfilled if one claims implication by necessity.

Answer 23

1. Property must be materially less fit for purpose by loss of right.
2. Grantor shouldve reasonably known that, due to their actions, the right would become an easement.

Question 24

Tell me about recognised easements

Answer 24

“Todd”, “Phipps”- Right to support
“Moody”- Right to advertise
“X”- right of way
“Allen”, “Tisdall”, “Goulding Properties”- Right to light

Question 25

Tell me about non recognised easements

Answer 25

“Copeland”- Right to park (bar Moncrieff)
“Phipps”, “Dublin Corp”- Right to protection against elements
“Hunter”- Right to TV Reception

Question 26

How can an easement be extinguished

Answer 26

By statute, Express release, implied release, union of ownership

Question 27

Is implied release hard to prove?

Answer 27

Yes. One must show dominant tenement has an unequivocal intention not to use the right again, or transfer the right’

Question 28

Name a case where it was unsuccessfully argued

Answer 28

“Carroll”- Right of way disused, overgrown and flooded due to dom tenements new entry. Still, no evidence they wouldn’t use it in future

Question 29

Name a case where it was successfully argued

Answer 29

“Moore”, Right to light abandoned by dominant tenement who got rid of their windows, waited 15 years, then tried to argue it still existed. In that time, the servant tenement had blocked it with a new building.