1
Q
Is the right capable of being an easement?
A
In Re Ellenborough Park:
- there must be a dominant and servient tenement
- it must accommodate the dominant tenement
- there must be diversity of ownership
- the right must lie in grant
2
Q
There must be a dominant and servient tenement - 2 identifiable pieces of land one benefitting and one burdened by the right
A
London and Blenheim Estates v Ladbroke Retail Parks
3
Q
An easement cannot be exercised by the interest-holder independently of any land he owns
A
Hawkins v Rutter
4
Q
Easement accommodates the dominant tenement
A
- is it connected to the normal use and enjoyment of the dominant tenement? Mere personal benefit insufficient.
Does it make dominant tenement a better property? Does it benefit any owner? Does right positively affect the value of the property?
5
Q
Re Ellenborough Park
A
Was right to use the park ‘reasonably necessary for the better enjoyment of that tenement’?
Private garden is an attribute to ordinary enjoyment of the residence (c.f. Jackson v Mulvaney)
6
Q
Right to exclusively put or use boats on river; ran boat hire business - not an easement as it simply benefitted him personally; unconnected with use and enjoyment of land
A
Hill v Tupper
7
Q
Pub owner had easement to hand sign from neighbour’s property - closely connected to land
A
Moody v Steggles - is business a necessary incidental of the normal use of the land rather than completely unconnected business?
8
Q
Dominant and servient tenements must be sufficiently proximate
A
Bailey v Stephens
9
Q
Diversity of ownership - any rights a person exercises over one part of his own land to benefit another part of his land are quasi-easements and are capable of becoming easements on division of ownership
A
Roe v Siddons
10
Q
Right must lie in grant (i.e. be capable of forming the subject matter of a deed)
A
- must be a capable grantor and grantee with separate legal personalities (vague, fluctuating body will not count)
- grantor must have sufficient ownership over servient land
- subject matter must be capable of reasonably exact description
- right should be within the general nature of rights traditionally recognised as easements
11
Q
Right to scenic view is too vague to lie in grant
A
Wiliam Aldred’s Case
12
Q
Right to flow of light through undefined channels too vague
A
Harris v De Pinna
13
Q
Rights of way
A
Borman v Griffith
14
Q
Rights of light
A
Colls v Home & Colonial Stores
15
Q
Rights to water in defined channel
A
Race v Ward
16
Q
Rights to air in defined channgel
A
Wong v Beaumont Property Trust
17
Q
Right to support
A
Dalton v Angus
18
Q
Rights to drainage ad pipelines through defined channel
A
Atwood v Bovis Homes
19
Q
Rights to pollute a river
A
Scott-Whitehead v National Coal Board
20
Q
Rights to cause a nuisance
A
Sturges v Bridgman
21
Q
Rights to storage
A
Wright v McAdam
22
Q
List is not exhaustive - courts willing to expand to accommodate social change
A
Dyce v Lady James Hay
23
Q
New easements should not be negative in nature
A
Hunter v Canary Wharf - right to TV rejected as it would restrict development of servient land
24
Q
Additional limitations
A
- expenditure by servient tenement owner
- exclusive possession
- dependence upon permission by servient tenement owner
25
Exercise of right requires the servient tenement owner to spend money - no easement
Regis Property Co v Redman (supply of hot water not an easement)
26
Distinction between right to water supply (requiring expenditure) and right to passage of water through existing pipes - dominant owner liable to reimburse servient owner for expenses incurred
Rance v Elvin
27
Servient tenement owner has no obligation to do any repairs or maintenance to enable the dominant tenement owner to enjoy the easement. But he must allow the dominant owner to enter the servient tenement to do the necessary repairs at his own expense
Jones v Pritchard; Carter v Cole
28
Where exercise of right amounts to exclusive possession of the servient tenement, it cannot be an easement
Copeland v Greenhalf (right to keep vehicles on C's land = exclusive possession)
Grigsby v Melville (right to store articles amount to exclusive possession)
Jackson v Mulvaney (right to use garden did not prevent servient owner from also using it - easement upheld
29
Easement to park in one of several spaces upheld so long as it did not interfere with servient owner's reasonable use of the land
London & Blenheim Estates v Ladbroke Retail
30
Right to park in any one of four spaces upheld as easement
Hair v Gillman
31
Right to part 6 cars from 8am-6pm Mon-Fri failed as virtually whole beneficial use of land
Batchelor v Marlow
32
Moncrieff v Jamieson
True test is that the servient owner should not be deprived of possession and control. But Scottish - only persuasive - deprivation of use or deprivation or possession and control?
33
If dominant tenement owner has to seek fresh permission every time he wishes to exercise the right, it cannot be an easement
Green v Ashco Horticultural - always moved van when asked
34
Express Acquisition
- express grant
| - express reservation
35
Any easement that has been expressly reserved will be construed strictly against the person who reserved the right
Cordell v Second Clanfield Properties
36
Implied acquisition
- necessity (grant & reservation)
- common intention (grant & reservation)
- Wheeldon v Burrows (grant only)
- s62 LPA (grant only)
37
Necessity
An easement will by implied where it can be shown that its existence is essential for any use of the dominant tenement to be made
38
No easement of necessity will be inferred if there is some other means of access to that land, even if difficult or inconvenient
Manjang v Drammeh
39
Right of way may be implied out of necessity even where landlocked dominant tenement was partly surrounded by land owned by a 3rd party who may in theory provide an alternative means of access
Adealon International v Merton BC (CA)
40
Easement will not be implied out of necessity merely because it is highly advantageous e.g. rights of drainage, sewerage, electricity
Pryce v McGuinness
41
Common Intention
An easement will be implied out of common intention where the land has been sold for a particular purpose and that purpose cannot be fulfilled without the existence of an easement
42
General intention as to how property should be used is insufficient, parties must intend property to be used in some definite and particular manner
Pwllbach Colliery v Woodman
43
Covenant to keep premises free from cooking smells could not be achieved without extractor fan - easement of common intention to enter landlord's premises to install a fan
Wong v Beaumont Properties
44
Where a person wishes to rely on an easement being impliedly reserved by common intention, there will be a heavy burden of proof resting upon him to show that the reservation was mutually intended
Re Webb's Lease - simply showing that the right had been openly exercised prior to transaction into which it has been acquired may not be enough to impliedly resrve it
45
Reservation by common intention will only be found if the facts are 'not reasonably consistent with any explanation other than that of an implied reservation'
Peckham v Ellison
46
Wheeldon v Burrows
Where A owns land and sells/leases part of the land to B, B will impliedly acquire as easements all those rights which A had previously exercised over the land he retains for the benefit of the land he has sold/leased to B
47
Wheeldon v Burrows only operates where, immediately prior to the sale/lease, there was a common owner and occupier of the whole
Kent v Kavanagh
48
Wheeldon v Burrows can also operate where a common owner splits the land and sells/leases both plots contemporaneously
Swansborough v Coventry
49
Requirements for Wheeldon v Burrows:
Right must be:
- continuous and apparent
- necessary to reasonable enjoyment of property
- in use at date of transfer
50
Must be discoverable from careful inspection of land by a person ordinarily conversant with the
Pyer v Carter
51
Necessary to reasonable enjoyment if it enhances enjoyment of land e.g. use of main drive even though alternative access which was not strong enough for heavy vehicles
Borman v Griffith
52
Where alternative access routes are equally as convenient, no easement will be implied under Wheeldon v Burrows
Wheeler v Saunders
53
Suggested that necessary to reasonable enjoyment and continuous and apparent requirements are alternatives and one alone is sufficient.
Ward v Kirkland
BUT predominant view is that both must be satisfied (Millman v Ellis)
54
Must have been used by common owner in recent past and expected to be exercised again in near future
Kent v Kavanagh - use by tenant insufficient
55
Implied acquisition under Wheeldon v Burrows can also operate on a contract to sell/lease (unlike s62 LPA)
Borman v Griffiths
56
s62 LPA
Automatically allows all easements attached to and benefitting a piece of land to pass to a successor in title automatically
Only operates where there has been a conveyance (unlike Wheeldon v Burrows)
Possible to exclude operation - s62(4) LPA
57
s62 LPA will only operate where there is prior diversity of dominant and servient tenement ownership prior to the conveyance
Payne v Inwood
| Except where right to light - Broomfield v Williams
58
Conveyance = document creating legal estate (not equitable)
Wright v Macadam
59
Landlord allowed tenant of lodge to use main drive, tenant subsequently bought lodge - acquired as easement
International Tea Stores v Hobbs
60
Prescription
Where rights have been exercised for a long time, but no actual grant of the right can be traced, it may be acquired
61
Requirements for prescription:
- exercise of right must be 'of right' - neither by force, by stealth or by permission'
- exercise of right must be by/on behalf of one fee simple owner against another fee simple owner, who knows about use and does not resist it
- use must be continuous until established
62
Prescriptive easement of drainage failed as the use, though not surreptitious was unknown to and unsuspected by plaintiff
Barney v BP Truckstops
63
Unsolicited permission prevented use being of right
Odey v Baker
64
Period of user as of right against a tenant may give rise to an easement if owner of freehold knew of user at some stage and could have stopped it but failed to do so
Williams v Sandy Lane
65
Common Law prescription
- enjoyed since time immemorial (since 1189)
- if it can be shown use has existed for at least 20 years, it will be presumed that it has existed since 1189, unless it can be shown that at some time since 1189, the right could not/did not exist e.g. for building clearly erected after 1189/ownership changed since 1189
66
Prescription - lost modern grant
If continuous user for at least 20 years can be shown, there is a judicial presumption that at some point there was a valid deed of grant which has been lost. Court will not admit evidence to show that there never was a grant, but must first apply common law prescription.
67
Prescription Act 1832 - Easements other than light
continuous use for 20 years can be defeated if:
- user not of right
- servient owner is infant/mentally incapable/ tenant for life - period of ownership deducted
- interruption of a year or more
40 year period defeated if:
- user not of right (oral consent ok unless repeated - Gardener v Hodgson's Kingston Brewery)
- periods of ownership by infant/mental patient not deducted
- interruption of more than 1 year
68
Prescription Act - easements of light
Period of 20 years only
- user does not have to be of right, but written permission will defeat easement
- no disability of servient owner will affect period
- tenant may acquire easement against landlord/ another tenant of same landlord if for benefit of property
- amount of light is such as is necessary for ordinary use and enjoyment of land
69
Amount of light depends on ordinary use
Allen v Greenwood (greenhouse needs more light)
| Carr-Saunders v Dick McNeil
70
Rights of Light Act 1959
Possible to register a light obstruction notice effective for one year as a local land charge; notice must be given to all interested parties
71
House converted into institution housing 150 people - excessive burden - dominant owner had to restrict user to the extent the easement used to be
Woods v Saunders
72
Land changed from agricultural to caravan park for 200 caravans - excessive
Jelbert v Davis
73
Legal Easement
- created for duration of fee simple or term of years - s1(2) LPA
- acquired by deed (whether in grant of freehold/lease or independently)
74
Easement expressly acquired over registered land
Registration to be legal - s27(2)(d) LRA 2002.
No registration requirements for implied or prescribed easements
75
Equitable easement
- grantor of easement has equitable estate (s53(1)(a) formalities)
- failure to fulfil formal requirements for legal easement - s2 LPMPA formalities
- contract to grant legal easement in future - s2 LPMPA + SP
- easement implied into acquisition of equitable estate - no formalities
76
Passing benefit of easement to a successor of the dominant tenement
s62 LPA - automatically passes on conveyance of dominant tenement
77
Enforcing burden of easement against a successor of the servient tenement - registered land
Legal easements acquired by express acquisition - registration (s27(2)(d) LRA); notice on charges register of servient tenement entered (s38 LRA)
Legal easements acquired impliedly or by prescription:
- overriding interest if Sch3 Para3 satisfied
Equitable easements:
- notice on charges section of the register of the servient tenement - s32 LRA. If not entered, not binding on a purchaser for value
78
Enforcing burden on successor of servient tenement - unregistered land
Legal Easements (by all methods) - bind the whole world
Equitable Easements - registrable as Class D(iii) land charge (post-1926); if not registered, purchaser of legal estate for money or money's worth not bound. Pre-1926 doctrine of notice applies
79
Extinguishment of easements
Express - deed necessary but equity may interfere - Waterloo v Bacon
Implied - where dominant owner abandons his rights; mere non-user is generally insufficient
Unity of possession will suspend right; once possession and ownership are in same hands (unity of seisin), the easement is extinguished
80
30 years of non use of right of way, now difficult to access but not impossible was not abandoned as not clear intention
Williams v Sandy Lane
81
Right of way not uses for 50 years and blocked by fences = abandoned
Swan v Sinclair
82
Right of way not used for 100 years because there were alternative access routes not abandoned as could be resurrected
Been v Hardinge
83
Pulled down cottage with windows and built windowless wall; 19 years later wanted window - easement had been abandoned
Moore v Rawson
