Easements 1 Notes

Land Law: Easements 1

Definition [cf with restrictive covenant]

• The right to use/enjoy –a right enjoyed and exercised over the land of another (ius in alieno solo).

• Has legal capacity – s1(1) LPA 1925, If formalities etc.

• OR the right (indirectly) to restrict the use/enjoyment [[CF a restrictive covenant, which directly interferes with use/enjoyment of land]]

• of land belonging to someone else.

• The fact of an easement necessarily involves some indirect restriction of the servient land.

• Positive easements (rights involving going on the land of someone else):

  • eg right of way, right of drainage.

  • Right to use the land of another in a particular way.

  • Servient owner is restricted in his/her use of land indirectly because he cannot build, for example, to block the right of way.

• Negative easements (don’t need to go on to the land of someone else):

  • Gives right to restrict the way in which another may use their own land.

  • eg right to light; right of support.

Distinguish easements from:

• Profits a prendre (not on syllabus): rights to take something from land of another (eg soil, fish, graze pigs).

• Natural rights:

  • Ownership of land carries with it certain natural rights. Eg right to support of land in its natural state. But no natural right of support to a building erected on land, for this these must be a proper easement.

• Public rights:

  • Can be similar to easements, but instead of being exercised by an individual person/body, the right is exercised by general members of the public, eg public right of way.

• Licences:

  • Can authorise the use of land in same way as an easement. However, a licence cannot exist as an interest in the land—it confers a mere personal right.

  • Some licences may be accompanied by an estoppel binding on a third party with notice—such a licence may look remarkably like an equitable easement (see Ives Investments v High).

• Restrictive covenants:

  • Can be similar to negative easements, but different.

  • Promises not to do something, prime function is to restrict use of land. More obvious restrictions than those caused by easements—easements are rights to use land of another, the restrictions are an indirect side-effect of the easement.

  • Covenants can be wider in scope and more flexible, eg a covenant against building can de facto confer a right to a view—this would be too vague to be an easement.

  • Other difference: only the burden of a negative covenant is enforceable against a subsequent purchaser of the affected land; and covenants between freeholders can never be implied, only expressly created.

• Quasi-easements

  • Unformed, nebulous rights exercised by a landowner over their own land, which could exist as a separate easement should the land over which the right is exercised change ownership.

  • Potential easements.

  • Important for Wheeldon v Burrows.

Reservation or Grant?

• Easement can arise from (1) Reservation; (2) Grant

• (1) Reservation:

  • Land owner reserves a right for themselves over the land he has sold or let (something kept back by the landowner). So A reserves the right for their land to enjoy the benefit of an easement. A becomes the dominant tenement owner.

  • Commonly arises where: A owns a large piece of land, decides to sell/lease some of it to another, B. A will expressly reserve such rights for the benefit of the land retained, in the relevant written documentation.

  • Strict construction of reservations against landowner: courts take view that landowner has ability to reserve exactly what he wants, so strict against landowner if they haven’t specified something, because when A reserves the right they have full control and are in a position to reserve exactly what they need, the court will assume they have done this.

  • St Edmunsbury & Ipswich Diocesan Board (No 2): CoE owns a church, rectory and grounds. Access to the church was across the rectory grounds. Rectory was sold off; church reserve a right of way through the rectory grounds to the church. Deed didn’t make clear whether right was by foot or vehicle.

  • The owner of rectory insisted that the right of way was on foot only—caused problems for weddings and funerals.

  • COURT: had to determine the extent of the right reserved. Looked at circumstances at time of reservation. The gateposts at the time were only 4 feet apart, which wouldn’t allow vehicular access. The Church was in a position to specify right of way for vehicles at the time, but didn’t do so—reservation didn’t apply for right of way of vehicles.

  • Cordell v Second Clanfield Properties: example of strict interpretation against the dominant owner.

  • Attwood v Bovis Homes: the burden has substantially changed, so the increased use could not be claimed.

  • Massey v Boulder, CA: The right of way cannot be used substantially for the benefit of another piece of land or for another purpose.

• (2) Grant

  • Land owner creates a right in favour of a new owner/tenant of part of the land, over his retained land.

  • So A decides to expressly give to another, B, an easement over their (A’s) land. A becomes the servient tenement owner; B becomes the dominant.

  • Although can be granted any time, they commonly arise where land is being sold/lease to another, and the express grant of the easement will appear in the relevant written documentation.

Essential characteristics of an easement—Re Ellenborough Park

• Re several plots of land which surrounded a park/garden. Deed granted express right to use/enjoy the garden to each property which surrounded it.

• During war, land was requisitioned. Question: was the right taken from the plot owners an easement—if it was, the landowners were entitled to compensation for loss of a legal right.

• HELD: was an easement, set out 4 characteristics.

• There must be all 4:

  • (1) Must be a Dominant and Servient tenement

  • (2) Easement must accommodate Dominant tenement

  • (3) No common ownership between the two

  • (4) The right must lie in Grant

• [[DON’T CONFUSE THESE RULES WITH THOSE FOR COVENANTS IN TULK]].

• (1) There must be Dominant and Servient...

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