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Easements Notes

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Definition of an easement:
o 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).
o These rights are bound to the land and therefore pass with the land when the land is sold.
o Parker v Roberts - It is an easement for the dominant tenement alone, not for any other/adjoining land.
Distinguish from profits a prendre:
o 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])
o 1) There must be a dominant and a servient tenement.
o 2) The easement must accommodate the dominant tenement.
o 3) The dominant and servient tenement must be owned (or occupied) by different people.
o 4) The right claimed must "lie in grant"
1) There must be a dominant and a servient tenement.
o An Easement cannot 'lie in gross': there needs to be a benefitted piece of land.
o 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.
o Must enhance the utility of the dominant tenement: A
qualitative judgement is required here.
o Must 'enhance the utility of the land' and must do so in relation to the 'normal use of the land' (Regency Villas)
o 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.
o The tenements must be sufficiently proximate - if not neighbours they must be nearby (Bailey v Stephens).
o 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.
o 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.
o 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"
o Capable of forming the subject matter of the grant, i.e. an easement must be capable of being an easement.
o Must be capable of a reasonably exact description
 No right to enjoy a scenic view: William Aldred's
Case (1610)
o 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.
o 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.

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