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Easements Notes

GDL Law Notes > GDL Land Law Notes

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A more recent version of these Easements notes – written by Cambridge/Bpp/College Of Law students – is available here.

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Land: Easements
- 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. 3rd party? (registered/unregistered land rules).


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).

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