W5 Easements Flashcards
What is an easement?
A proprietary right over another’s land
What is a negative easement?
A right restricting/prohibiting something
What is a positive easement?
A right to do something
What is profit a prendre?
The right to come onto land and take something away (e.g. fishing)
What are the characteristics of an easement?
1) Must be a dominant and servient tenement
2) Must accommodate the dominant tenement
3) No common ownership/occupation of dominant/servient tenement
4) Right must lie in grant
Authority: Re Ellenborough Park
Re Ellenborough Park 1956
Facts: Plots surrounding a pleasure ground were sold off, with rights to use of pleasure ground granted to new owners subject to a fee. Question was whether it was an easement. Court said it was.
Significance: Authority for definition of an easement
What is the dominant tenement?
The land benefitting from the easement
What is the servient tenement?
The land restricted/bound by the easement
London & Blenheim Estates Ltd v Ladbroke Retail Parks
Facts: Selling off of land with easements, and also a clause that if purchaser bought more land in the next five years, the same easements would be applied. Court ruled that an easement could not arise over the additional purchases, as the dominant was not sufficiently identified.
Significance: Can’t encumber land with burdens of uncertain extent
What does it mean to accommodate the dominant tenement?
It must be of practical benefit to the land
Must be proximate to dominant tenement
Hill v Tupper 1863
Facts: Owner of a canal granted the other party an exclusive right to put pleasure boats on the canal for profit.
Significance: Was a personal right as it did not benefit the land, so was deemed a licence and did not bind successors.
Moody v Steggles 1879
Facts: Owners of a pub arguing that the right to affix a sign to the wall of neighbour’s building was an easement. Question was whether it benefitted the land - court said yes, benefitting the land includes the mode in which the land is used.
Significance: Rare case of a business reason for a right of way being granted as an easement.
Regency Villas Title Ltd v Diamond Resorts
Facts: Estate of villas with gardens, tennis courts, etc. Owners of individual villas asserted that right to access the recreational facilities were easements.
Significance: Accommodating the dominant tenement can include recreational use.
Bailey v Stephens
Facts: Someone cut down a tree they weren’t supposed to.
Significance: Dominant and servient tenements (for easements and covenants) must be proximate to one another.
Roe v Siddons 1888
Facts: Dispute over a private road linking two houses to the main road. There was an easement, then unity of possession, then possession split again. Did the easement continue? No, it had been extinguished.
Significance: Authority for common ownership/occupation extinguishing an easement
What does it mean for a right to lie in grant?
Must be capable of forming the subject matter of a Deed
Clearly definable
Granted by someone with an estate in the land
Analogous to existing forms of easement
No new negative easements
William Aldred’s Case 1610
Facts: A right to a pleasant view was not capable of being an easement.
Significance: For a right to lie in grant, it must be clearly definable
Phipps v Pears
Facts: Claim to an easement protecting dominant house from rain and frost, meaning servient house could never be demolished. Court rejected the claim - would be a new kind of negative easement.
Significance: Court will not grant new kinds of negative easement
Can a servient owner be required to make a payment to facilitate an easement?
No: Regis v Redman
Dominant owner may access the land to maintain the easement
Regis v Redman
Facts: Claim of right to hot water as an easement was rejected.
Significance: Servient owner cannot be required to pay to facilitate easement.
What are easements not allowed to do?
1) Require servient owner to pay to maintain/facilitate
2) Exclude servient owner from their own land (i.e. grant exclusive possession, since then that’s a lease)
3) Be subject to permission
What are the 3 Ps?
Three things that prevent something from being an easement:
Payment
Possession
Permission
Easement must not _________ the servient owner from their own land
Exclude
How does the court determine whether an easement excludes the servient owner from their own land?
“Reasonable use” test
“Possession & control”
Some combination of above
Batchelor v Marlow 2001
Facts: Right to park a car in a commercial parking space during business hours was not an easement as it amounted to exclusive possession (ouster principle). Reasonable use test applied - servient owner would only want to use the space during business hours, so to recognise the easement would exclude the servient owner from reasonable use.
Significance: Reasonable use test for exclusion of servient owner
Moncrieff v Jamieson 2007
Facts: SCOTTISH CASE, NOT STRICTLY BINDING. Question was whether a right of vehicular access included a right to park. Court said it could be if it was necessary for the enjoyment of the right of access, provided it did not prevent the servient’s possession and control of his land.
Significance: Possession & control test re: exclusion of servient owner
Kettel v Bloomfold 2012
Facts: A lease granted leaseholders an easement to use designated parking, which prevented the landlord from building on those parking spaces.
Significance: Combination approach to reasonable use and possession & control tests
Wright v Mcadam 1949
Facts: Defendant let a flat to claimant and granted permission to use a shed to store coal (licence). Later granted her a new tenancy - court found that this converted the licence to an easement under s62(1) LPA 1925.
Significance: Inconsistent decisions on exclusion of servient owner. Controversial decision as it upgraded a personal right to a proprietary one, and also granted an exclusive right (excluding owner) which violates the ouster principle and essentially makes the easement more similar to a lease.
Grigsby v Melville 1974
Facts: Butcher owned adjoining properties, used one as a shop and the other as a home. Sold them, and vendor boarded up all the adjoining doors above ground, but not the cellar access. New owners disputed over who could use the cellar. Court said ownership included substratum, did not create an easement as storage in cellar would be exclusive possession.
Significance: Inconsistent decisions on exclusion of servient owner
Green v Ashco Horticulturist 1966
Facts: An alley and a courtyard were intermittently used to get goods into a shop. Shopowner had to ask employees of servient land to unlock the gates to use the alley and courtyards. As such, was a permissive right, so did not become an implied easement under s62 LPA upon conveyance.
Significance: Not an easement if it’s permissive
What are the three ways an easement can arise?
Expressly
By implication
Prescription
How does an easement arise by grant?
Granting a right to someone else over your land
How does an easement arise by reservation?
Selling off adjacent land and reserving a right over it
How does a legal easement arise expressly (i.e. formalities)?
Deed (s52 LPA and s1 LPMPA)
If over registered land, must be registered (s27 LRA 2002)
Must be of duration equivalent to an estate (s1.2 LPA 1925)
How does an equitable easement arise expressly?
Walsh v Lonsdale failure of deed + s2 LPMPA compliant contract
Deed that was not registered
Not of a duration equivalent to estate
Proprietary estoppel
An easement arising by implication must be implied into a __________
Must be implied into a transaction
How to determine if an easement by implication is legal or equitable?
Easement takes its status from the document it is implied into
e.g. an equitable lease = equitable easement
How can an easement be implied by grant?
Sale of land where the easement is necessary for access
Clear common intention of vendor and purchaser that easement is necessary for use of land for intended purpose
Diversity of ownership prior to easement
Quasi-easement converted into full easement
Manjang v Drammeh 1990
Facts: Dispute over access to the river shoreline. Tried to argue necessity of right of way, court said the banks could be accessed via the river, which had a public right of way.
Significance: If property accessible by water, then right of way by necessity invalid.
Sweet v Sommer 2004
Facts: A previous owner had erroneously granted a right of way ultra vires. Without that right of way, a property was landlocked unless a shed was demolished. Court granted an implied reserved right of way, as original selling parties obviously intended the workshop to remain standing.
Significance: Example of implied reservation of easement. Also proprietary estoppel giving rise to an easement.
Wong v Beaumont Trust 1965
Facts: Basement let as a restaurant, including a covenant for use as a restaurant and to control smells, odours, and have compliant ventilation. There was no duct, so tenant sued landlord for damages and declaration that he was permitted to erect a fume duct. Court granted an easement of necessity.
Significance: Easement of necessity arising from intended use of land.
s62 LPA 1925
A conveyance of land conveys the easement as well. Case law interprets this as creating easements upon conveyance.
Sovmots v Secretary of State 1979
Facts: Council bought flats over an office building as a leasehold through compulsory powers. Right of access over lifts and stairs. Question was whether it created easement through compulsory powers, since not a normal transaction (did the right lie in grant when they subletted the flats?). Court said the rights could be acquired, but that Wheeldon v Burrows did not apply as no diversity of ownership and also no implication of an easement under s62.
Significance: Authority for s62 requiring diversity of ownership.
Wood v Waddington 2015
Facts: Right of way for vehicles also allowed the dominant to use it on foot and on horseback, but not to drive herds/flocks of animals. Test to see if change of use was valid was whether the new use resulted in a substantial increase in the burden over the servient land.
Significance: Authority for change of use test. Also authority for implied quasi-easements arising from selling off of dominant tenement, then converting to full easement if use is continuous and apparent.
Wheeldon v Burrows 1879
Facts: Workshop and adjacent land for sale. Land was sold separately to workshop. New land owner blocked light to workshop - workshop owner tried to assert a right to light. As there was no prior diversity of ownership before conveyance, there could not have been an easement unless expressly reserved.
Significance: On a grant of land, the buyer will acquire all easements by implication which are continuous and apparent and which are used for the benefit of the land. Applies to equitable leases without a legal conveyance (i.e. no document) where Wood v Waddington does not.
How can you prevent an easement from arising in a transaction?
Express wording in the transaction
How can an easement be implied by reservation?
Necessity
Common intention
What is prescription?
Easements arising from long use
What are the requirements for an easement to arise by prescription?
1) Must be exercised as of right
2) Must relate to a freehold
3) Must be continuous for a sufficient length of time
What are the three methods of an easement arising via prescription?
Common law prescription
Common law prescription via lost modern grant
Statutory prescription (Prescription Act 1832)
What is Common Law Prescription?
Easement has been in use since 1189 with 20 or more years of evidence of use
What is Common Law Prescription via lost modern grant?
Easement has been in use for 20 or more years (and original grant has been lost)
What is Statutory Prescription?
In use for 20 or 40 years, based on Prescription Act. One of the worst statutes ever drafted - not used.
What are the remedies for breach of an easement?
Injunctions
Damages
Abatement
What is abatement?
Self help, e.g. removing the obstruction. Cannot use force.
What is overuse?
Easements cannot be used for purposes or with an intensity beyond their original scope
How can easements end?
Unification of ownership and occupation
Agreement by the dominant owner
Long-term abandonment
Unenforceability
How can an easement become unenforceable?
Failure to protect via registration (if on registered land)
Will a pause in use stop an easement?
Not usually
Easement structure
1) Is the right capable of being an easement? (Re Ellenborough Park criteria and 3 Ps)
2) Was it acquired expressly/impliedly/by prescription?
3) Is it legal or equitable? Does it need protection?
4) Remedies
