WEEK 6- Easements

Question 1

What is an easement and how does it differ from a covenant?

What is the difference between a dominant and servient tenement?

Answer 1

Easements are rights enjoyed by a landowner over another person’s land. A positive easement (such as a right of way) involves a landowner going onto or making use of something in or on a neighbour’s land.

Covenants are a type of contractual promise concerning land, some of which can be enforced against future owners of the land, rather than just against the person who made the promise

Also known as servient lands and burdened property. A parcel of real property that is burdened by or subject to an easement that benefits another parcel of real property. The real property benefited or enjoying the use of the easement is referred to as the dominant tenement. The type of easement involving a servient tenement is usually an easement appurtenant.

-An easement is either a positive or negative right of use over land that is owned by another. By positive, we mean a right that the right-holder is allowed to exercise on the land. By negative, we mean a right that the right-holder has to prevent the other landowner from acting in a certain manner over that land. The easement benefits the landowner and their land, the so-called “dominant tenement.” The land over which the right is exercised (and there must be land to exercise the right over) is called the “servient tenement”, and it should not involve any extra obligations upon the servient tenement.

Question 2

What is the difference between a positive and negative easement, and what type of right is it?

Answer 2

An easement is a right benefiting one piece of land (known as the dominant tenement) enjoyed over another piece of land, owned by someone else (the servient tenement). Ordinarily, an easement allows the owner or occupier of the dominant tenement to do some act on the servient tenement, for example to pass along a road or to run services over it. Such an easement is a “positive” easement. Less commonly the easement to which the servient tenement is subject will limit what the owner or occupier of the servient tenement may do on that land. For example, the servient owner might be restricted in
what it can build on the land, because it might otherwise interfere with the dominant tenement’s right of light. This is a “negative” easement – it does not involve the dominant owner going onto or making use of the servient tenement, or from obstructing or interfering with the servient tenement, but it involves a restriction on the use to which the servient tenement can be put.
Easements do not ordinarily impose on the servient owner obligations to repair. Even in the case of a positive easement, such as a right of way, the servient owner is not obliged to keep the road or path or other land subject to the right of way, in good repair. If they do carry out repairs, unless there is an express agreement to such effect, they will not be entitled to a contribution from the owner of the dominant tenement towards the costs.
Further, whether positive or negative, an easement is more than a personal permission or licence. It is a proprietary right which ensures for the benefit of the dominant tenement and, if properly registered, the burden will bind successors in title of the servient tenement (s.187, Law of Property Act 1925).
In contrast, a positive covenant normally imposes an obligation on the covenantor to do some positive act in relation to land, or requires expenditure of money – for example, an obligation to carry out repair or maintenance, or to erect and maintain structures. The burden of a positive covenant does not normally bind successors in title of freehold land. So, a covenant to repair, or contribute to the cost of repair, is a positive covenant the burden of which will not run with the land. Whilst the original covenantor remains contractually bound by a positive covenant, once it has sold its interest in the land the covenant will not be enforceable.

Question 3

What is a fencing easement, such as the one found in Haddock v Churston Golf Club, and why is it considered more of a quasi-easement?

Answer 3

A fencing easement is one which requires that a servient tenement maintains a fence or boundary between the adjoining dominant tenements land. Easements normally should not impose positive obligations upon the servient tenement, but they do in this rare example. Also, they did not give the dominant tenement any right to do anything over the servient tenement.

In Haddock, it was found that fencing easements still meet all four requirement of an easement: (1) there must be a dominant and a servient tenement; (2) an easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit; (3) the dominant and servient owners must be different persons; and (4) the right claimed must be capable of forming the subject-matter of a grant.

It followed that the relevant clause was capable of forming a fencing easement.

Question 4

In the absence of an express clause stipulating the terms of such a fencing easement, how else might one be established, following Egerton v Harding?

Answer 4

Thus, fencing easements have been established by proof that over many years, the owner of (putative) servient land has consistently repaired a fence, when asked to do so by the (putative) dominant owner, and therefore inferentially in performance of a binding obligation. The fact that a fencing easement can apparently be established through the doctrine of lost modern grant suggested that it might be possible to create a fencing easement by an express grant. However, neither of the modern Court of Appeal cases that upheld an obligation to fence (Crow v Wood [1971] 1 QB 77 and Egerton v Harding [1975] Q.B. 62) involved an express creation of fencing obligations. Restrictive covenants do not bind third parties:

Question 5

Facts and decision in Re Ellenborough Park 1956?

Answer 5

The house occupants surrounding the park believed they had been granted an easement over the neighbouring park, can common with one another, but the park was taken over by the government during WW2, for which the occupants seemed compensation. If it was a proprietary right which they had been deprived of, they would have been entitled to compensation.

It was held that the right in question was in fact an easement.

Question 6

What were the reasons given in Re Ellenborough park for the decision that the right in question was an easement?

Answer 6

• The right to use the garden benefited the occupants of the house for domestic purposes, and thus more than merely a recreational or leisurely way. It provided utility analogous to a right of way.
• The rights of the dominant tenement was served by the servient tenement land (the park)
• Necessary connexion between enjoyment and the premises to be enjoyed by the dominant tenement.
• The right was not a right of joint occupation with the freehold owners of the park

Question 7

Despite the decision in Re Ellenborough, which said that recreational rights over land do not amount to an easement in the absence of some additional utility/ purpose, how was this qualified in Regency Villas?

Answer 7

Where the dominant tenement is used for recreational purposes, an easement may be granted over adjoining land which serves merely a recreational purpose.

Question 8

Facts and outcome of Regency Villas?

Answer 8

Facts- whether the use of adjacent leisure facilities by those occupying timeshare apartments, including a swimming pool in a neighbouring Manor House constituted an easement recognised at law?

Although in terms of legal memory timeshare is a relatively recent concept, timeshare units of this kind are typically occupied for holidays, by persons seeking recreation, including sporting activities, and it is to my mind plain beyond a doubt (as it was to the judge) that the grant of rights to use an immediately adjacent leisure development with all its recreational and sporting facilities is of service, utility and benefit to the timeshare apartments as such, just as (although for different reasons) the grant of rights over a communal garden is of service, utility and benefit to a townhouse.”

Question 9

What are the requirements which make a subject matter capable of being granted?

Answer 9

ncludes series of miscellaneous requirements which have been held to be essential to the characteristics of an easements
Right defined in sufficiently clear terms
Not purely precarious so as liable to be taken away at the whim of the servient owner
Not so invasive as to oust the owner
Policy reason: to prevent freehold land being permanently encumbered by proprietary restrictions and obligations which inhibit its utility to an unacceptable degree
Right should not impose upon the owner obligations to expend money or do anything beyond mere passivity

-There is also the recognition of the ouster principle which requires that the easement does not deprive the owner of the servient tenement of the reasonably beneficial use of his land, or, possibly, the lawful possession and control of it.

Question 10

What was the important facts and points made in London & Blenheim estates, but why has part of it since been outdated?

Answer 10

It laid down a test of relative size for testing the ouster principle; but this test is outdated post Montcrieff v Jamieson. (this part has been outdated, but the case remains good authority regarding the requirement of defined dominant and servient land)

• In this case, a co-op branch sold part of its land to the appellants, whilst reserving the right to park card on the land. The agreement stipulated that if L&B acquired more land. they should inform Co-op so that could benefit from further parking rights over this newly acquired land.
• It was held that a specific parcel of dominant land was needed for newly extended servient land (ie the land with the car parking on) to provide this service. Simply agreeing that wherever any dominant land is extended (to an uncertain extent) the easement on the servient land will be extended (even to a certain degree) is insufficient.

Question 11

How does Hill v Tupper illustrate the requirement that the servient tenement accommodates the dominant land?

What question could be asked to determine whether the requirement of accommodation is met?

Answer 11

The use of the canal for the hiring out of boats accommodated/ benefited the boat as opposed to the land, and thus there was no easement capable of enforcement against the pub owner who also sought to hire out boats from his pub.

-There needs to be a natural connection between dominant and servient land- there was not natural connection between the use of the land and the land. The question to ask is whether the same actions could be carried out across another plot of land- it must benefit as capacity of owner as dominant tenement. It benefits as freeholders or leaseholders, not merely in some personal capacity.

Question 12

How does Polo Woods Foundation add clarity to the requirement of accommodation by discussing the extent of the necessity of the right for the reasonable use of the dominant land?

Answer 12

The needs of the dominant tenement (in this case in a profit a prendre for grass from the servient tenement) need not reach a threshold of necessity for the easement to operate. The business operating on the dominant tenement may operate perfectly well without the easement, and the easement itself may not be sufficient for the dominant tenement to operate solely from. The phrase of reasonably necessary does nothing more than epitomise the requirement that the right must be connected with the normal enjoyment of the property and whatever it happening upon this property.

Question 13

What rule does Phipps v Pear expound.

What policy reasons were given for the decision by Lord Denning?

Answer 13

That no further negative easements are to be recognised by law

The protection of a structure from the weather is neither an easement nor such a right known to the law as will impliedly pass on a conveyance under the Law of Property Act 1925 s.62 . In about 1930 the common owner of two houses pulled one down and rebuilt it close to, but getting no support from, the other, the nearest walls not being bonded together. He later sold the new house to P, and the old house was sold after his death to R who demolished it, leaving the flank wall of the new house exposed for the first time to the weather, which did damage. P sued R for damages on the footing of an implied easement on the sale to him of a right of protection from weather.

Lord Denning: The case, so put, raises the question whether there is a right known to the law to be protected - by your neighbour’s house - from the weather. Is there an easement of protection?
- ‘The reason underlying these instances is that if such an easement were to be permitted, it would unduly restrict your neighbour of his enjoyment of his own land. It would hamper legitimate development. Likewise here, if we were to stop a man from pulling his house down, we would put a brake on desirable improvement’.

Question 14

Why was it decided that there was no easement capable of being granted in Batchelor v Marlow?

Answer 14

A right to park cars, on Mondays to Fridays between 9.30 am until 6.00 pm, on a strip of land owned by B was incapable of being an exclusive prescriptive easement because the use of the land was so intrusive as to render B’s ownership illusory.

Significance at paragraphs 15 and 18:

• 15. After that short diversion I return to the question which has to be answered in this case. Does an exclusive right to park six cars for 9½ hours every day of the working week leave the plaintiff without any reasonable use of his land, whether for parking or anything else?
• 18. If one asks the simple question: “Would the plaintiff have any reasonable use of the land for parking?” the answer, I think, must be “No”. He has no use at all during the whole of the time that parking space is likely to be needed. But if one asks the question whether the plaintiff has any reasonable use of the land for any other purpose, the answer is even clearer. His right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory

Question 15

What test, now outdated post Moncrieff v Jamieson, was expounded in the high court in Blenheim estates?
(note that the test in Blenheim estates is said to be relaxed in denying the existence of easements)

Answer 15

The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant

Question 16

Although a Scottish case, what were the implications of Moncrieff v Jamieson?

Note that Polo woods recognised that Marlow v Batchelor was binding upon that court.

Answer 16

First and foremost, this case rejected the application of the test in Blenheim estates and other parking cases (Batchelor v Marlow), by suggesting that their tests were not strict enough. Essentially the court felt that they had a role to uphold the autonomy of land owners to grant whichever rights they wanted over their land, and

Question 17

How was the test in Batchelor v Marlow disapproved of in Moncrieff v Jamieson?

Answer 17

It is the test itself. I do not see why a landowner should not grant rights of a servitudal character over his land to any extent that he wishes. The claim in Batchelor v Marlow for an easement to park cars was a prescriptive claim based on over 20 years of that use of the strip of land. There is no difference between the characteristics of an easement that can be acquired by grant and the characteristics of an easement that can be acquired by prescription. If an easement can be created by grant it can be acquired by prescription and I can think of no reason why, if an area of land can accommodate nine cars, the owner of the land should not grant an easement to park nine cars on the land. The servient owner would remain the *2643 owner of the land and in possession and control of it. The dominant owner would have the right to station up to nine cars there and, of course, to have access to his nine cars. How could it be said that the law would recognise an easement allowing the dominant owner to park five cars or six or seven or eight but not nine? I would, for my part, reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land

Question 18

What test was substituted for the Ladbroke test?

Answer 18

I would, for my part, reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land

Question 19

Following Polo Woods, what is the test for whether an easement is capable of being granted, when the easement itself is potentially intrusive on the rights of the servient tenement?

Answer 19

121. Although Moncrieff v Jamieson casts considerable doubt on the correctness of the decision in Batchelor v Marlow , Mr Batstone is right, I think, to say that the latter case is binding on me as a matter of law particularly in a case of prescription rather than express grant: see in this context Gale on Easements at 9-102 footnote 266. The question for me then is whether Ms McAllister was right to say that the test derived from Batchelor v Marlow would not defeat the right claimed in the present case.

Question 20

Significance of Rance v Elvin?

How does it fit with the fencing easement in Haddock?

Answer 20

Rights that impose positive obligations on the servient owner are not valid easements, allowing the supply of water through one’s pipes does not amount to a positive obligation- a fencing easement is often considered a quasi-easement to which this situation is not applicable.

Question 21

What is the difference between positive easements and positive obligations?

Answer 21

Do not confuse positive obligations on servient owners with positive easements, which are positive rights accorded to the dominant owner, and are valid
In problem questions the case can be applied by analogy to obligations to allow the passage of water or gas
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Question 22

What does s52 of the LOPA say?

Answer 22

All conveyances in land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed

Question 23

What does Nickerson v Barraclough illustrate with regard to the possibility of easements arising from implication?

Answer 23

That public policy is to play no role in the construction of a document in trying to find necessity for the implication of an easement.

The document said that, unless roads were made, there would be no right of way to the person owning the landlocked land allowing them to cross the bridge to the defendants land via a highway. -When the applicable right was granted, there was no necessity of its existence at the time (in 1906) because the land wasn’t landlocked at the time, and since no further right had been granted, P was not entitled to use this right of way by reliance on the current necessity, which was of no application when the original right was conveyed.

Question 24

What does Pwllbach v Woodman establish regarding implied easements, but how has it since been qualified regarding role that common intention has to play in establishing easements by implication?

Answer 24

Establishes the existence of implied easements based off of a common intention of the parties involved, however this has been qualified by Nickerson v Barraclough, which said that common intention is the basis for implication rather than an independent ground for implication.

Question 25

How does Wong V Beaumont illustrate the common intention implied easement by showing it in the context of the manner/ purpose for which the land is granted?

Answer 25

C is the tenant of a Chinese restaurant situated underground and is so badly ventilated that it needs an air duct fixed on the back wall of the building that belongs to the landlords D
The health inspector deemed it necessary
Held: there is an easement
Lord Denning MR
If C has a right at all it must an easement since C is not the original lessee nor are the Ds the original lessor
The law will readily imply the grant or reservation of easements to give effect to the common intention of the parties with reference to the manner or purposes for which the land is granted
If the lessee is to have any benefit by the grant at all he must of necessity be able to put a ventilation duct on the wall

Question 26

What is the rule under Wheeldon v Burrows?

Answer 26

The case established that quasi-easements may be implied by grant on the sale of a piece of land, so long as certain requirements are met.

These requirements are that, when a landowner sells part of his land over (retaining a different part of this land), so long as the quasi-easements are continuous and apparent, and necessary for the reasonable enjoyment of the land sold, the purchaser of land will have the right to use all of these rights over the retained land by the seller.

This comes with the caveat that, in the absence of an express reservation of rights, or an easement by necessity, the seller of land will have no further easements over the sold land.

Question 27

Succinctly explain the Wheeldon v burrows rule?

Answer 27

Authority supports the proposition that in cases of grant you may imply all those continuous and apparent easements (quasi-easements) which are:
Necessary for reasonable enjoyment of property conveyed
Have in fact been enjoyed during the unity of ownership for the benefit of the part granted
In contrast, reservation of easements must be made expressly in the grant, subject to exception in the case of necessity

Question 28

What is the significance of Wheeler v Saunders?

What are the key facts, and how does it compare to Borman v Griffith?

Answer 28

A right must offer more than purely convenience to be implied under the rule in Wheeldon

When C bought a plot of land, there were 2 access routes that went through D’s land but no express grant of either
D barred the access route to the south entrance of C’s land
C claimed an implied grant of right of way over the barred access route
Held (Court of Appeal): No easement was impliedly granted (only allowed in part due to the nuisance created by the pig shit)

Compare this case to Borman v Griffith, where the additional access route provided access to heavy vehicles necessary for the dominant owner’s business – it can be inferred that a secondary right of way will not be granted unless there is a practical need for it, not merely greater convenience for the dominant owner. The authorities show that where an ‘obvious and made road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have intended to grant a right to use it’
- An easement was thus implied for the use of the main drive in Borman v Griffith.

Question 29

Facts and significance of Wright v Macadam?

Answer 29

The main significance of this case is that it illustrates the ways in which rights such as licenses can be converted into easements by virtue of s62 of the LOPA 1925

A new tenancy agreement which, unlike the first, made no reference to the use of the coal shed which the tenant had enjoyed under the first tenancy agreement, converted the quasi-easement into an easement by s62. Thus, a mere permission can be converted into an easement as it will be impliedly read into the grant, so long as there was no understanding that the permission would be merely temporary.

Question 30

How is the Wheeldon and burrows test more strict than s62?

Answer 30

Like s62, it requires a right/ quasi-easement capable of being converted by implied grant, but furthermore it must be both continuous and apparent, as well as necessary for the reasonable use of the land in question.

Conversely, the s62 rule does not require the necessity that was shown in cases such as

Question 31

How does Goldberg v Edwards illustrate the operation of s62 in turning a quasi-easement into an easement upon conveyance of part of a larger plot of land?

Answer 31

Facts-A landlord leased an annex to his house. He permitted the tenant to access the annex through his house, although other access via a covered passageway was also possible. The tenant was replaced by the claimant, who also accessed the annex through the landlord’s house, against his wishes. The landlord stopped the claimant’s access through his house
Issue- Had the new tenancy agreement converted the old tenant’s personal right of access into an easement?

Decision- Yes
Reasoning-Section 62 of the Law of Property act had converted the right, and did not have a requirement of necessity. The date of execution, applicable to actual use, was irrelevant considering that the lease had been backdated- it just had to be reasonable and apparent.

Question 32

What rule regarding the operation of s62 of the LOPA was highlighted explicitly in Platt v Crouch?

Answer 32

“59. I am, therefore, satisfied that the rights claimed by the claimants were “continuous” and “apparent” rights which passed under the conveyance to them pursuant to s.62 of the Law of Property Act 1925 ,

Question 33

How does Wood v Waddington differ to the rule under Wheeldon v Burrows, applied in Wheeler v Saunders?

Answer 33

Appeal allowed in relation to the claim under s62, but not under the express grant. “If a quasi-easement fell within the category of easements that were enjoyed with the land conveyed then there was no additional requirement that the easement had to be necessary for the reasonable enjoyment of land under s62. The applicability of s.62 depended on the features observable at the date of the conveyance and the use made of the claimed rights: in relation to the first easement there were sufficient signs on the ground for the claimed route to have been continuous and apparent.

Whereas in Wheeler v Saunders the use of the second drive was not necessary for the continuing farming of pig shit.

Question 34

What is the latest definition of continuous following Wood v Waddington?

What does continuous actual refer to? The use of the right or the existence of the ways itself.

Answer 34

‘continuous’ is to be given its ordinary meaning of uninterrupted and unbroken
The definition given by Ungoed-Thomas J in Ward v Kirkland is wrong, it is the use of the ways, not the ways itself that must be continuous
There must be a regular pattern of usage before the conveyance