Easements Notes

• - Definition: right enjoyed + exercised over land of another (ius in alieno solo).

  • can be legal (s1(2) LPA 1925).

  • positive: right to enjoy/use land of another in particular way (e.g. right of way);

  • negative: right to restrict way in which another may use land (e.g. right of light) – now rare.

  - Structure:

  • 1. capable of being an easement (a. Re Ellenborough Park criteria; b. 3 additional factors).

  • 2. properly acquired? (a. express grant/reservation; b. implied grant/reservation).

  • 3. enforceable vs. 3^rd party? (registered/unregistered land rules).

  Capability

  Essential Characteristics (Re Ellenborough Park, [Evershed MR]): must be attached to land.

  - 1. Dominant + servient tenement must exist (London & Blenheim Estates v Ladbroke Retail Parks).

  • 2 identifiable pieces of land at time of grant: dominant (benefits) + servient (burdened)

  • if not cannot be easement: cannot exist in gross (i.e. independent of land – would prob. be licence).

    • Hawkins v Rutter: right to park barge on oyster bed not easement (barge not land).

    • Alfred Becket v Lyons: right to collect coal from sea shore not easement (no dominant tenement).

  - 2. Easement must accommodate a dominant tenement: i.e. direct benefit to land, not just particular owner.

  • factors:

    • makes dom. tenement better/more convenient.

    • connected to normal use/enjoyment of dominant tenement.

    • would benefit any owner: i.e. not mere personal right.

    • increases value of dominant tenement.

  • commercial right: if necessary incident of land, not unconnected business.

    • Hill v Tupper: right to put pleasure boats on canal from land no: personal commercial right.

    • Moody v Steggles: right to put up sign for pub valid: long-term use of land as pub, so benefit to land.

  • proximity with servient land needed (Bailey v Stephens: ‘cannot have RoW over land in Kent for Nmbr’land estate’).

  - 3. Diversity of ownership/occupation: cannot have easement over own land (Roe v Siddons).

  • own land: quasi-easements: right exercised over one part of land for benefit of another can become easements on division of ownership (Roe v Siddons).

  • can be diversity of occupation only – leases: OK for freehold of d. + s. land to be joined.

  • if freeholds of d. + s. land joined easements extinguished.

  - 4. Right must ‘lie in grant’: i.e. be capable of forming subject matter of deed – 3 elements:

  • i. capable grantor + grantee: 2 separate legal personalities + hold legal estate + capacity.

  • ii. capable of reasonably exact definition: i.e. not too vague certainty + enforceability.

    • rights of light, water, air, passage etc.: need defined channels (Harris v De Pinna; Bryant v Lefever).

    • not rights that require subjective interpretation (William Aldred’s Case; Bland v Mosley: scenic view).

  • iii. within nature of rights traditionally recognised as easements (but not closed list):

    • established easements:

      • right of way (Borman v Griffith).

      • right of light (Colls v Home & Colonial Stores).

      • right to water in defined channel (Race v Ward).

      • right to air in defined channel (Wong v Beaumount Property).

      • right to support (Dalton v Angus & Co).

      • right of storage (Wright v Macadam).

      • right of drainage/pipeline through defined channel (inc. gas, electric) (Atwood v Bovis Homes).

      • right to pollute river (Scott-Whitehead v National Coal Board).

      • right to cause a nuisance (Sturges v Bridgman).

    • new easements can be recognised (Dyce v Lady Jones) – test:

      • 1. satisfies Re Ellenborogough Park requirements.

      • 2. not negative: courts reluctant (Phipps v Pears: no right to weather protection; Hunter v Canary Wharf: no right to TV signal).

  3 Limitations: failure will prevent right from being capable of being easement (only raise if relevant).

  - 1. Servient tenement owner must not incur expense.

  • Regis Property v Redman: supply of hot water not easement.

  • Rance v Elvin: right to passage of water on s. land CoA: valid, but d. owner must reimburse expenses (meter).

  • necessary repairs/maintenance: at d. owner’s expense (Carter v Cole).

    • s. owner must allow access (Jones v Pritchard; Access to Neighbouring Land Act 1992).

  - 2. Does not amount to exclusive possession of servient land by d. owner.

  • conflicting tests:

    • a. is s. owner left with reasonable use of land? (Grisgby v Melville; Batchelor v Marlow).

      • preferred test (Virdi v Chana: followed, Moncrieff v Jameson not binding).

    • b. does s. owner retain possession + control (Moncrieff v Jameson (Scot), [Ld Scott]; Waterman v Boyle).

      • less likely exclusive possession: e.g. s. owner could still dig under land where car parked.

  • differing definitions of servient land: can influence result.

    • wide approach: entire property (Wright v Macadam) less likely to be exclusive possession.

    • narrow approach: only part over which easement exercised (Batchelor v Marlow).

  • application:

    • Grigsby v Melville: right to store articles in cellar no: exclusive.

    • Jackson v Mulvaney: use of communal garden easement.

    • right to park car: only if does not interfere with s. owner’s reasonable use.

      • Hair v Gillman: right to part in spaces OK.

      • Batchelor v Marlow: right to park 6 vehicles from 8.30am-6pm Mon-Fri no: exclusive.

  - 3. Exercised as of right: repeated permission not needed (Green v Ashco Horticultural: d. owner always moved van when asked by s. owner not easement).

  Acquisition

  Express Acquisition

  - Express grant or express reservation required.

  • reservations: construed against dom. tenement owner (Trailfinders v Razuki).

  - Legal or equitable?

  • legal: 1. by deed (s52(1) LPA 1925); 2. freehold/leasehold term (s1(2)(a) LPA); 3. registered (s27(2)(d) LRA 2002).

  • equitable: failure to fulfil legal requirements, but s2 LP(MP)A 1989 compliant contract.

  Implied Acquisition

  - Implied into deed or contract: need deed or contract to begin with.

  • 4 methods:

    • 1. necessity: implied grant or reservation.

    • 2. common intention: implied grant or reservation.

    • 3. rule in Wheeldon v Burrows: implied grant only.

    • 4. s62 LPA 1925: implied grant only.

  - 1. Necessity: essential...

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