Easements

Question	Answer
Definition	K. Gray: easement is an 'incorpereal hereditament, compromising in essence either a positive or negative right over the use of land'
Terminology	Dominant: the land which advantages from the easement Serviant: land which has to bear the burden of the easement/right of way Positive Easement: e.g rights o way Negative Easement: right to light
Re Ellenborough Park Which Rights Can Be Easements?	No list of which easements defined anywhere in english law due to a policy tension Key case set out the essential characteristics of an easement. In this case, given 'full enjoyment' of the park surrounded by the houses. held to be an easement
1. There must be a serviant and dominant tenement	not usually problematic to prove The DT and ST must be ‘sufficiently defined’ (Woodman v Pwllbach Colliery) - in this case, ST was not identified so easement failed. In London & Blenheim Estate v Ladbrooke no DT identified, so easement failed
2. The DT and ST must be different persons	Law Commission in 'Making Land Work', questions this if wanting to split a piece of land, not favourable to property developers etc
3. The Easement Must Accommodate The DT Tenement:	Evershed in Ellenborough Park 'what is required is that the right accommodates and serves the DT and is reasonably necessary for the better enjoyment of that tenement' accommodating is not simply about increasing property value, whether there is a connection is a fact dependent on the contextual connection
3. The Easement Must Accommodate The DT Tenement Key Cases	Pollock in Hill v Tupper: 'it is not competent to create rights unconnected with the use and enjoyment of land' Here, the hiring of boats would only have benefitted the claimant personally, rather than benefitting the land itself, and so no easement was established Moody v Steggles: a sign out onto high street benefitted the pub, and so land benefitted Clapman v Edwards: advertising on adjacent building, easement benefitting pub (DT) Therefore = about making the DT land better, regardless of the owner's own personal gain Copeland v Greenhalf: claim to keep things for business purposes on neighbouring land could be an easement
3. Must Accommodate the DT Tenement: What does not accommodate DT?	Evershed in Ellenborough gave two examples: - entry into zoological garden for free - going to a cricket ground/game without payment He explained that this is because 'there is insufficient nexus between the enjoyment of the right and the use of the land'
3. Must Accommodate DT Is Proximation Necessary?	Byles in Bailey v Stephens grant to owner of land in Kent of a right of way over land in Northumberland and would not create an easement Intervening land is not fatal, if the DT is accommodate in fact: Todrick v West National Omnibus See Baker article
3. Must Accommodate DT Recreational Easements	Ellenborough - allows But, Regency Villas v Diamond Resorts: Purle 'rights of recreation can take effect as easements, so long as they accommodate DT, are not too wide and vague, do not amount to rights of joint occupancy, and do not deprive ST of proprietorship possession' doubted possibility of recreational easements Strange rule in Harris v Flower of right of way not being allowed if to get through ST to more of DT's land. However, law commission want to get rid of this rule
4. Right Must Be Capable of Forming Subject Matter of Grant:	Under this element, there are four factors to consider: 1. there must be a capable grantor/grantee 2. the right must be precise, cannot be too wide or ill-defined (William Alfred) 3. the right must not be too exclusive on ST, e.g cannot restrict what SO does on own land 4. particular restrictions for negative easements
4. Must Be Capable of Forming Subject Matter of Grant: the right must not be too exclusive	Best exemplified in storage and car parking cases In Reiley v Booth, Lopes 'there is no easement known to law that gives exclusive use of a piece of land' Key case = Rigsby Wright v Macadam: stored coal in shed on ST. must be excluding other from using that shed? too exclusive? this point was not taken in case and so was held not to be too exclusive Miller v Enicer Products: toilets in office Copeland v Greenhalf: held to be too exclusive, repairing lorries case, effectively claiming joint use (G. Spark - represented a backwards step in development of easements) Grisby v Melville: storage in cellar - taking up all room too exclusive. Brightman J 'the claim would give an exclusive right of use over the whole of the cellar' Haning v Morland: held to be too exclusive use of flat roof by tenant of an upper floor maisonette as extension to her home Platt v Crouch: held not to be too exclusive to moar boats, as not all time not too exclusive Newman v Jones: right for a land - owner to park car anywhere in a defined area near DT could be an easement
4. Must Be Capable of Forming Subject Matter of Grant: the right must not be too exclusive Key Tests	* London Blenheim: Paul Baker QC if right would leave SO without any reasonable use of his land, whether parking or anything else could not be an easement * Moncrieff v Jameson: Lord Scott prefers test whether SO can still retain possession and control LC recommend even if so can't use, that shouldn't stop a right from being an easement G. Sparks argues 'it is time to abandon a seemingly fundamental principle of easements, accepting that right can exist as easements even if amounting to claim of possession of ST'
4. Must Be Capable of Forming Subject Matter of Grant: Negative Easements	Leading case of Phillips v Pears. No easement of protection of a house from the weather damage caused by the removal of the adjacent house. DT could not object to ST demolishing house. Lord Denning: 'every man is entitled to pull down his house if he likes', law is cautious about creating negative easements
4. Must Be Capable of Forming Subject Matter of Grant: Negative Easements Right to Light	Exceptional rule to courts general reluctance to allow negative easements. Can restrict what ST does to land in respect of building in such a way as to shift off DT's light - massively important in cities considered separately by the LC, they want to reduce number of right to light claims, but huge protest to this
Acquisition of Easements Express Creation	Can do this to create a legal or equitable easement. Easement is legal under s.1(2)(a) LPA. To be legal, it must be granted for an interest equivalent to an estate fee simple, or a term of years under s.1(2)(a) Express legal easements need a deed - under s.52 LPA and in registered land must be completed under s.27(2)(d) and 27 LRA for equitable easements, still need some formalities, would need to meet the requirements of s.53(1)
Acquisition of Easements Implied Creation	when land is owned by one person and is divided and parts sold, an easement may be implied Two different divisions: 1. Easements of Necessity 2. Rule in Wheeldon v Burrows
Acquisition of Easements Implied Creation Necessity	may be implied through necessity because 'parties must have intended it to exist' this will be inferred where land would be useless without it, e.g land locked a) nature, degree and timing of necessity: maryang v drammeth could use the river as many did. Nickerson v Barradough founded on an implication from the circumstances rather than public policy - has to be necessity at time of grant Rudd v Bowles: each lease contained implied grant of right because 'an intent to grant such a right must necessarily be infered'. Wong v Beaumont: without rent business would have failed - necessity in stafford v lee Nourse held 'there are two hurdles (1) common intention (2) necessary to give effect to easement Donovan v Rana and Another: the easement is necessary to achieve the parties expressly intended purposes it is not seeking to manufacture a necessity out of what is reasonable or desirable
Acquisition of Easements Implied Creation Wheeldon v Burrows	branch of rule 'against derogation from one's grant' used when a piece of land is subdivided and one or more plots are sold off Thesiger: 'on the grant by the owner of a tenement of part of that tenement it is then used and enjoyed, there will pass to the grantee all those (1) continuous and apparent easements, or (2) those necessary to the reasonable enjoyment of property Nullman v Ellis: a right of way over all of the layby was necessary for enjoyment of DT because the use expressly granted path was dangerous Wheeler v Saunders: no easement because right claimed was 'not necessary for enjoyment of land' Peter Gibson LJ held that first test is synoymous to second test
Acquisition of Easements Implied Creation s.62 LPA	S.62(1): a conveyance of land shall be deemed to include all land, buildings, erections, fixtures...easement, rights, and advantages - has been interpreted to give rise to a new legal easement Wright v McAdam: new tenancy agreement was a conveyance S. Douglas disputes the idea that the uplight effect comes from a misrepresentation of 62 - but agrees that if is often not what parties intended. LC wants to change interpretation and repeal 62 long-standing suggestion of need for prior diversity (Long v Gorrett) Wood v Waddington: no prior diverse - rights acarred nonetheless. Lewison LJ: 'a right such as a right of way can pass under 62 even where there had been prior diversity of occupation' law commission argues that 62 should no longer transform precarious beliefs into legal easements. possible to exclude the operation of 62
Wheeldon v Burrows v S.62 LPA	Have to think about W v B where there is an equitable transfer of interests S.62 is limited to conveyances - legal transfers. So have people done it formally? Yes = 62 No = W v B
Prescription	Coke 'a title acarred by use or enjoyment had during the time and in the manner fixed by law' comparable to adverse possession there are three species of prescription: 1. common law: where E must have been used during time whereof the memory of man runneth not to the contrary 2. Lost modern grant: it is presumed that a grant has been made and lost in modern times if easements has been enjoyed for 20 years 3. Prescription Act 1832: features long and short periods of prescription with different requirements and complex rules concerning disability
Losing Easements	Create Notes
Formalities	Create Notes

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	Created by Winnie Robinson about 7 years ago