Easements

• Definition of an easement:

  • Two pieces of land – it is a right enjoyed by one piece of land over another piece of land.

    • Dominant Tenement – the piece of land that enjoys the benefit of the right.

    • Servient Tenement – the piece of land over which the right exists (the burden).

  • These rights are bound to the land and therefore pass with the land when the land is sold.

  • Parker v Roberts – It is an easement for the dominant tenement alone, not for any other/adjoining land.

• Distinguish from profits a prendre:

  • A profit is very similar to an easement but, unlike an easement, it involves the right to enter someone else’s land and take something from the soil.

• The four conditions (in Re Ellenborough Park (1956) affirmed in Regency Villas v Diamond Resorts [2018])

  • 1) There must be a dominant and a servient tenement.

  • 2) The easement must accommodate the dominant tenement.

  • 3) The dominant and servient tenement must be owned (or occupied) by different people.

  • 4) The right claimed must “lie in grant”

• 1) There must be a dominant and a servient tenement.

  • An Easement cannot ‘lie in gross’: there needs to be a benefitted piece of land.

  • The dominant tenement must exist and be identified at the time of the grant:

    • London & Blenheim Estates v Ladbroke [1994]

• 2) The easement must accommodate the dominant tenement.

  • Must enhance the utility of the dominant tenement: A qualitative judgement is required here.

  • Must ‘enhance the utility of the land’ and must do so in relation to the ‘normal use of the land’ (Regency Villas)

  • It is not enough that the alleged use is attached or annexed to the dominant land.

    • E.g. right to enter Lords if you live nearby. This may increase value of the land but does not increase utility in relation to its normal use.

  • The tenements must be sufficiently proximate – if not neighbours they must be nearby (Bailey v Stephens).

  • Hill v Tupper (1863) - owner of a canal leased land on the bank of the canal to H and granted him sole and exclusive right of putting pleasure boats on the canal. Tupper then put rival pleasure boats on canal.

    • There was nothing about the use of mooring that enhanced his land – there is nothing special about that piece of land. Therefore no easement.

  • Moody v. Steggles (1879) The case concerned a right to put a sign advertising a public house on a neighbouring building.

    • It was held that the right - which benefited the trade that was being carried on the dominant tenement - was capable of being an easement.

• 3) The dominant and servient tenement must be owned (or occupied) by different people.

  • Occupied means by a tenant, licensee, or maybe even a squatter.

    • Borman v Griffith – landlord and tenant

• 4) The right claimed must “lie in grant”

  • Capable of forming the subject matter of the grant, i.e. an easement must be capable of being an easement.

  • Must be capable of a reasonably exact description

    • No right to enjoy a scenic view: William Aldred’s Case (1610)

  • Must be within the general nature of the rights traditionally recognised as easements -

    • Rights of way – Borman v Griffith [1930]

    • Rights of light

    • Rights of support

    • Rights of storage – Wright v Macadam

    • Rights of signage – Moody v Steggles

    • Right to water in a defined channel

    • Right of drainage through a defined channel

    • Right to air in a defined channel - Wong v Beaumont Property [1965]

    • Rights to pollute or cause a nuisance

    • Right to use recreational facilities – Regency Villas

    • Any new easement must be analogous to these categories – incrementalism.

  • Easements are generally passive (not requiring servient owner to do anything).

    • Some exceptions: e.g. the easement of fencing (Crow v Wood; Churston Golf v Haddock [2018] – appeal pending) requires the servient owner to build and maintain a fence.

      • Also easement of support (Phipps v Pears) have to maintain the wall which is supporting your neighbours building.

      • Cardwell v Walker – servient owner has to generate electricity

  • Regency Villas raises question of expenditure. Generally should not be required.

    • Who is going to pay for upkeep of golf course, swimming pool etc.

      • If the alleged use imposes an obligation to spend money it cannot be an easement.

      • Held that the dominant owners could still use the facilities without the the servient owners spending anything.

    • Cf. overruling Moncrieffe v Jameson

      • Lord Scott said he doubted whether you could have an easement to use a swimming pool as required servient to spend money

    • Lord Cornwath: permanent membership of a country club.

  • Cannot Oust Servient Owner from their Land:

    • In order to be an easement, the dominant owners activity must allow the servient owners reasonable use of their own land.

      • Bachelor v Marlow - Car Park held to be too extensive.

      • Copeland vGreenhalf [1952] Storage of farming equipment held to be too extensive.

      • Wright v Macadam[1949] Allowed to store coal on land.

    • Obiter in Moncrieffe v Jameson (Scotland)

      • Use can still be an easement so long as the servient owner retains control of their land. Not precedential but implies more extensive easement rights.

Creation of Easements

• Express Creation of an Easement:

  • 1) A deed of grant is drawn up (s. 52 LPA 1925 - legal) or a written contract (equitable) – usually this is for a fee.

  • 2) Owner sells part of his land, as part of the conveyance will be a clause granting an easement. This is then registered (s.27 LRA 2002)

• Implied Creation of Easements:

  • Four methods

    • 1) Easements of necessity

    • 2) Common Intention

    • 3) Section 62 LPA

    • 4) The rule in Wheeldon v Burrows

  • All begin with land owned by A (freehold or leasehold) who then sells part of his land.

  • Impliedly granted (A keeps the servient land) or impliedly reserved (A keeps the dominant land)

• 1) Easements of necessity

  • Must be completely impossible, not just advantageous, to use the land without the easement. This is a very strict test.

  • Nickerson v. Baraclough [1981] – In 1906 land sold off in plots without any easements. By 1973...

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