Property Law, Easements Flashcards
Definition of an Easement
Proprietary right. Held by dominant tenement over servant tenement. Can be positive or negative
Key Case, Uk and Ire
“RE Ellenborough Park” and “Carroll”
5 Criterion under “REEP”
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.
Tell me more about S1
Easements are “appurtenant” rights. Cannot exist in gross. Thus, a dominant and servient tenement is required.
Relevance of “Latimer” to s1
“Latimer” states that dom and servant tenement need not be “directly adjacent”, but instead “sufficiently approximate” to enable the accommodation of the easement.
Tell me more about S2
Easement must “confer a benefit upon the dom tenement”. Must make it a “better, and more convenient property”.
When can an easement arise
Easement can only arise out of the connection to the “natural enjoyment of the property”.
Provide an example of “natural enjoyment of the property”
“REEP”- communal garden and residential house
“Moody”- advertising of business and business
Provide a non-example of “natural enjoyment of the property”
“Hill”- exclusive right to place pleasure boats on canal does not benefit business property, only nature of business.
Tell me more about S3
Cannot have union of ownership. Cannot have an easement over oneself, unless its a leasehold occupied by a 3rd party with exclusive possession.
Tell me more about S4
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”.
What are the issues with S4
Legal capacity and identity, clarity of content, accommodation of dom tenement, novel/impractical easements.
Provide some examples of a failure to fulfil s4
“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
Provide some examples of a successful fulfilment of S4
“Moncrieff”- right to park (controversial and facts specific)
“Regency Villas”- right to recreational facilities
“Allen”- right to light
Tell me more about S5
Cannot go so far as to deem servient tenement property rights “illusory”. Cannot excessively infringe upon servant’s property rights.
Provide some examples of a failure to fulfil S5
“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.
Provide some examples of a successful fulfilment of S5
“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
What case established that the dominant tenement must cover all maintenance and costs of easement
“Jones v. Pritchard”
How is an easement acquired/formed
Express grant, reservation, implication by necessity, implication by principle.
Tell me more about express grant and reservation
EG- On sale or lease of land, easement may be granted.
Reservation- Seller of land may want to “reserve” certain rights over it.
Tell me more about implication by necessity
Right arises as it is necessary for the reasonable use of the property (not even for reasonable enjoyment, just use), see “Wong” and ventilation.
Tell me more about implication by principle
Right arises at the 3rd party was denied something it was previously entitled to under contract. See “Regency villas” and recreational facilities.
What 2 things have to be fulfilled if one claims implication by necessity.
- Property must be materially less fit for purpose by loss of right.
- Grantor shouldve reasonably known that, due to their actions, the right would become an easement.
Tell me about recognised easements
“Todd”, “Phipps”- Right to support
“Moody”- Right to advertise
“X”- right of way
“Allen”, “Tisdall”, “Goulding Properties”- Right to light
Tell me about non recognised easements
“Copeland”- Right to park (bar Moncrieff)
“Phipps”, “Dublin Corp”- Right to protection against elements
“Hunter”- Right to TV Reception
How can an easement be extinguished
By statute, Express release, implied release, union of ownership
Is implied release hard to prove?
Yes. One must show dominant tenement has an unequivocal intention not to use the right again, or transfer the right’
Name a case where it was unsuccessfully argued
“Carroll”- Right of way disused, overgrown and flooded due to dom tenements new entry. Still, no evidence they wouldn’t use it in future
Name a case where it was successfully argued
“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.
