A more recent version of these Easements notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Land Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
- 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.
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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