Property Law Second Term - EASEMENTS Flashcards
What did Luther argue about the ouster principle?
What matter is ‘what the claimant could do by virtue of his E not what the owner could not do’
Cannot use E to benefit land other than DT
Harris v Flower
Re Aldred
‘Good view’
Formalities for an equitabl easement?
S.2(1) LP(MP)A
What are the requirements for implying easements under Wheeldon v Burrows?
Needs to be ‘continuous and apparent’ and/or ‘reasonably necessary’ for enjoyment
what is the primary undisputed difference between Wheeldon and s.62?
Necessary for reasonable enjoyment is only required for Wheeldon
What did the Law Com suggest about the ouster principle in Report No.327?
Allow a right to prevent STO from making reasonable use of the land if that is what he wishs to do
Which case considered both questions given for the ouster principle?
Moncrieff v Jamieson
Wall v Collins
E is at least as long as the original lease if A obtains fee simple from leasehold
What case outlines the implication of easements through common intention?
Davis v Bramwell
Why should Wood v Waddington be considered cautiously?
First instance decision that shouldn’t be taken to have destroyed Wheeldon
E is at least as long as the original lease if A obtains fee simple from leasehold
Wall v Collins
Right to use flat roof equivalent to ownership
Hanina v Mrland
Common intention for land to be used in a particular way, and grant necessary to give effect
Davis v Bramwell
Hanina v Mrland
Right to use flat roof equivalent to ownership
Davis v Bramwell
Common intention for land to be used in a particular way, and grant necessary to give effect
How are implied easements protected?
Schedule 3 paragraph 3
Bakery to homes
Macadams Homes v Robins
Just needs to be reasonably necessary for wheeldon v burrows , but not equated with necessity
Hillman v Rogers
Who suggested we look at the ouster principle from the wrong way and should consider what the claimant could do, not what the owner cannot?
Luther
Provide electricity (positive burden ST E) or DT would be unusable
cardwell v Walker
What is the ‘ouster principle’?
Not allowing right to be capable of forming subject matter of E if equivalent to possession
Harris v Flower
Cannot use E to benefit land other than DT
E necessary for DTO to use land for conveyed purpose - ventilation
Wong v Beaumont
What did Law Com No.327 suggest about housing estates?
For registered titled it should be possible for DT and ST to exist if owned by same person under different titles
What are the limitations of s.62 LPA?
Applies only to conveyance of sale/lease, can be excluded expressly/by circumstance, use must have been before conveyance and subject needs to be capable of meeting criteria for E
Moncrieff v Jamieson
Bottom of cliff
Wheeldon v Burrows
Implied grant of all rights in the nature of E (quasi-easemnts) that the seller enjoyed AND USED prior to transfer
Batchelor v Marlow
STO have any ‘reasonable use’ of the land left for ‘ouster principle’?
What is the disputed difference between Wheeldon and s.62 LPA?
Diversity of occupation - not needed for Wheeldon, assumd required for s.62 but Wood v Waddington
What does Sturley argue in response to the removal of a DT means there is no limit on the needs of the DT for an E so may overburden ST?
Still limited by the terms of the grant
If lease ends by surrender to owner of fee simple, easement survives
Barrett v Morgan
Storage in cellar too much for E
Grigsby v Melville
Alford v Hannaford
Could not prove use of a track prior to transfer so failed under Wheeldon v Burrows
Implied grant of all rights in the nature of E (quasi-easemnts) that the seller enjoyed AND USED prior to transfer
Wheeldon v Burrows
Boundary fences positive burden - unlikely now
Jones v Price
What are the requirements for an easement?
DT and ST both identifiable, which differ in ownership and occupation. The E must ‘accommodate’ the DT and right must be capable of forming the subject matter of a grant
Who showed there is a reluctance to develop new easements?
Phipps v Pears
Hillman v Rogers
Just needs to be reasonably necessary for wheeldon v burrows , but not equated with necessity
Which question was Neuberger unconvinced on in Moncrieff v Jamieson?
if there was ‘reasonable use’ left
Underground sewer repairs - DTO right to come onto ST to do what is ‘reasonably necessary’
Duke of Westminster v Guild
Bound to follow Batchelor v Marlow as not overruled
Virdi v Chana
Re Ellenborough Park on ‘accomodate’
Geographical part to test, and recreation productive and beneficial
What are the formalities for a legal easement?
S.53(1)(a) LPA and LRA s.27
What are presumed grants of an E?
By prescription (long use)
For implied easements, how do you work out if they are equitable or legal?
Look at the formalities made for the estate in question - if implied into s.53(1)(a)/registered disposition then legal , but if s.2(1) LP(MP)A then equitable
Thinks both reasonably necessary AND continuous and apparent needed for Wheeldon v Burrows
Millman v Ellis
Yeung v Potel
Heavy burden of proof for easements by reservation
Why are there registration issues if DT is dominant land?
requires manually moving E on leasehold to freehold with a time limit
What are the limitations on implied easements for necessity?
Only for rights of way, if there is no other access and only for access to a public highway
Millman v Ellis
Thinks both reasonably necessary AND continuous and apparent needed for Wheeldon v Burrows
STO have any ‘reasonable use’ of the land left for ‘ouster principle’?
Batchelor v Marlow
Who argued we should balanc the benefit of exploiting the DT against the burden on the ST - restricted to situations where sealed packets of land do more good than harm?
Gardner
‘Good view’
Re Aldred
What was said in Macadams Homes v Robins to work out if use of an easement is excessive?
‘Radical change’ of ‘identity’ of the land and a ‘substantial increase or alteration in the burden on ST’
Where do the requirements for an easement come from?
Lord Evershed MR in Re Ellenborough Park
Polo Woods v Shalton-Agar
Easement, to ‘accomodate’, does not have to be needed, just connected and with utility
What is the effect of s.62 LPA?
If B is in prior occupation with a licence to the road, and A sells that part of his land to B, B acquires an automatic easements over A’s land to the road
Barrett v Morgan
If lease ends by surrender to owner of fee simple, easement survives
What case shows there is a heavy burden of proof for easements by reservation?
Yeung v Potel
What three subcategories are found under (4) must be capable of forming the subject matter of the grant?
Must b sufficiently certain, no positive burden and ‘ouster’ principle
Re Ellenborough on certain
‘jus spatiendi’
Which case shows the difference between implication by necessity and wheeldon v burrows?
Borman v Griffith
What Law Commission Report considered Sturley’s arguments but said requirements for E should not be relaxed?
No.186 (2008)
Duke of Westminster v Guild
Underground sewer repairs - DTO right to come onto ST to do what is ‘reasonably necessary’
Jones v Price
Boundary fences positive burden - unlikely now
Wong v Beaumont
E necessary for DTO to use land for conveyed purpose - ventilation
Moncrieff v Jamieson on exercising right reasonable in regard to use of DT
Land was farm land, so needs to be taken into account for ‘ouster principle’ and capable of forming the subject of E
No positive burden on ST owner (easements)
William Old International v Arya
Why would Wood v Waddington be preferable if correct on s.62?
Fewer precursors - don’t need reasonable enjoyment (Borman v Griffith; Hillman v Rogers)
Bottom of cliff
Moncrieff v Jamieson
Easement through proprietary estoppel
Eves v High
Canal; E must benefit DT
Hill v Tupper
Macadams Homes v Robins
Bakery to homes
What are the four ways an easement can be implied?
Necessity, common intention, Wheeldon v Burrows and s.62 LPA
Virdi v Chana
Bound to follow Batchelor v Marlow as not overruled
Grigsby v Melville
Storage in cellar too much for E
Claimed E to acquired land, but not landlocked - right of way was necessary for reasonable enjoyment because more suitable
Borman v Griffith
Could not prove use of a track prior to transfer so failed under Wheeldon v Burrows
Alford v Hannaford
What are the two possible questions for the ‘ouster principle’?
Does STO retain exclusive possession? (Law Com) Does STO have ‘reasonable use’ left? (Batchelor v Marlow)
what case shows that an E cannot be use to benefit land other than the DT?
Harris v Flower
Sturley on requirements for E
Requirement of DT is ‘without authority or justification’
What two things are needed for an equitable easeement NOT through PE?
S.2 LP(MP)A specifically enforceable through Walsh v Lonsdale
Heavy burden of proof for easements by reservation
Yeung v Potel
cardwell v Walker
Provide electricity (positive burden ST E) or DT would be unusable
What was it suggested is not sufficiently certain to form the subject matter of a grant of E?
Re Ellenborough - no ‘jus spatiendi’; Re Aldred - ‘good view’
Borman v Griffith
Claimed E to acquired land, but not landlocked - right of way was necessary for reasonable enjoyment because more suitable
Easement, to ‘accomodate’, does not have to be needed, just connected and with utility
Polo Woods v Shalton-Agar
Eves v High
Easement through proprietary estoppel
Hill v Tupper
Canal; E must benefit DT
Who is an example of someone who thought recreation could not ‘accommodate’ the DT?
Theobald “The Law of Land”
Wood v Waddington
Diversity of occupation not needed for s.62
What Law Com report found the ouster principle unhelpful?
Law Com No.327
William Old International v Arya
No positive burden on ST owner (easements)
Do you need to register or have formalities for implied easements?
No - automatically operate at law
What happens if the lease of the ST ends by lapse of time?
E ends
What happens if the ST lease ends by forfeiture?
Easement ends
What happens if the lease of the ST ends by surrender to owner of fee simple?
E survives (Barrett v Morgan)
What happens if the lease of the ST ends by merger, but merger is denied?
Lease and E continue
What happens if A buys a DT and ST, with a lease on the DT?
Easement is not destroyed
What happens if A buys DT and ST/owns DT and leases ST
Easement is suspended
What is the housing development issue under easements with ST and DT needing to be in different ownership and occupation?
Cannot create E before sale
How could the housing development issue be solved for easements?
Grant a 2000 year lease under s.145 LPA instead
What type of reasoning was employed in Wall v Collins?
Policy-based reasoning
Why was the decision in Wall v Collins what it was?
Without it, land would have been landlocked
What is the ‘posh’ name for easements?
Incorporeal hereditaments
