What are the requirements for an easement to exist?
Re Ellenborough Park
1. Dominant and servient tenement
2. Each must be in separate occupation
3. Easement must accommodate the servient tenement
4. The right must be capable of forming the subject matter of a grant
What are some common examples of easements recognised by the law?
- Right of way
- Right to park a car (London & Blenheim Estates)
- Right to storage (Wright v Macadam)
- Right to lay and maintain drains
What does it mean for an easement to ‘accommodate’ the servient tenement?
The right must benefit the land, must give some benefit to the owner of the land for the time being that they own it rather than a personal advantage
- Hill v Tupper: right of exclusive possession for recreational right is not a valid easement
What was the decision in Regency Villas Ltd v Diamond Resorts Ltd?
Held that leisure facilities / mere right of recreation will accommodate the land where the dominant tenement is for recreational purposes itself
- Maintain of recreational facilities can be a mere expectation such that no positive obligation is enforced BUT if meaningful / practical use depends on continued maintenance, it cannot be an easement
What does it mean for an easement to be the subject matter of a grant?
Right must not be too wide / vague and must not amount to rights of occupation that are basically exclusive possession
For an easement to be capable of grant, what is the requirement of the servient owner?
Must be no positive burden on the servient owner: they do not have to do anything but simply allow the right to continue
(Rance v Elvin, right to uninterrupted supply of water from anothers land is valid even if the other person pays)
What was said in the case of Phipps v Pears?
A right to protection from the weather is entirely negative and cannot be capable of being the subject matter of a grant, court should not grant new negative easements
What is the ouster principle?
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd: Test of degree, if the right granted in relation to the area is such that it would leave the servient owner without any reasonable use of his land
Batchelor v Marlow: Application of the above test. Consider whether they have ‘reasonable use’, does it make his ownership of the land illusory (Law Commission heavily criticises)
Moncrieff v Jamieson: Said the test should be subsituted for one which asks whether the servient owner retains possession and, subject to the exercise of the right in question, control of the servient land (Scottish law case)
what are the three ways in which grant for an easement may arise? (ACQUISITION QUESTION)
Express grant (done by deed, because this is a legal easement it then must be registered)
Implied grant
Presumed grant, i.e. long user
What is the difference between a grant of an easement and a reservation of an easement?
GRANT: A sells part of their land so that B now has the dominant land and easement is given to them
RESERVATION: A sells the servient part of the land to B so that they keep an easement the dominant land has
What are the ways in which a reservation of an easement can occur?
Reservation of an easement can only apply where it is:
- Expressly given
- Necessary
- There is a common intention
What is the effect of s65 on the reservation of easements?
If reserving an easement, this will usually have to be done expressly. S65 makes so if this occurs, i.e. servient owner agrees to it, it does not need to executed by conveyance in regrant
What are the ways in which an implied grant can arise?
-Easement of necessity
-Intended easement
-Rule in Wheeldon v Burrows
-s62 LPA 1925
When will an easement of necessity arise?
Situations where land becomes landlocked and the land cannot be used otherwise at all, this is not upon public policy but on an implication from the circumstances
Nickerson v Barraclough
When will an intended easement arise?
- Where implication arises because the right in question is necessary for the enjoyment of some other right expressly granted (Pwllbach Colliery Ltd v Woodman)
- Where the easement is necessary to enable the dominant owner to use the land for the purposes which it was acquired (Wong v Beaumont Property)
What is the rule in Wheeldon v Burrows?
Where the previous owner of both pieces of land had a quasi-easement that was continuing and apparent for necessary enjoyment of the land, this will mature into a full easement where the dominant land is sold to another
Two requirements:
1. Quasi easement must be continous and apparent, Borman v Griffith
2. Must be reasonably necessary for enjoyment of land, Wheeler v JJ Saunders
What is the effect of s62 Law of Property Act 1925?
- Word saving effect
- s62(1) Conveyance of land shall be deemed to include and by this act operate to convey with the land all […] liberties, privileges, easements, rights and advantages
- s62(4) consider if there is a contrary intention (silence is not enough)
What does the case law say about the operation of S62 LPA?
Wright v Macadam
- Not confined to legally enforceable rights, it can be mere permission
Wood v Waddington
- No requirement that it be necessary for the reasonable enjoyment of land
- S62 can apply in cases of quasi-easements (were land was owned by one person)
Goldberg v Edwards
- The relevant time at which the right must be present is the date of conveyance, not the date when possession is taken by the transferee
What is the difference between Wheeldon v Burrows and s62?
- s62 requires a conveyance by deed, Wheeldon v Burrows can operate upon creation/transfer of equitable transfer
- s62 is wider in terms of the rights that can pass
- Both can only be used for the grant of an easement, not reservations
How can an easement arise under presumed grant?
Prescription
What are the rules on easements and registration?
- An express easement must be registered to be a legal easement (s27(2)(d))
- An equitable easement will not count as an overriding interest, instead it must have an entry on the register or where actual occupation is shown under sch3 para 2
- Easement by implied grant is overriding under sch3 para3 unless it was not obvious upon inspection of the land and the third party did not have knowledge, but this does not matter if it was exercised in the year prior
How would an equitable easement be overriding under sch3 para2?
- Would require actual occupation, difficult to make out in showing that they occupied the servient land
- Epps v Esso Petroleum: Parking a car was not enough to be in occupation
- Chaudhary v Yavuz: equitable easement of a right of way could not be actual occupation as it only amounted to ‘use’ but judgement did not rule out the possibility in a future case
