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Easements Notes

GDL Law Notes > GDL Land Law Notes

This is an extract of our Easements document, which we sell as part of our GDL Land Law Notes collection written by the top tier of Cambridge/Bpp/College Of Law students.

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Revision: Land

[EASEMENTS]

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The right to enjoy or use (positive); or the right (indirectly) to restrict the use or enjoyment of land belonging to someone else (negative)

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Legal capacity: s1(2) LPA 1925

Rights analogous to easements

1. Quasi-easements: exercised by landowner over his own land: could become easements in certain circumstances

2. Natural rights: e.g. right to support of land in its natural state (but cannot have natural right of support to a building erected on the land)

3. Public rights: can be exercised by general members of the public - e.g. public right of way o

Customary rights: e.g. right to hold a fare - created individually by statute

4. Licenses: cannot exist as an interest in land: confers a mere personal right. Some licenses may be accompanied by estoppel binding on a 3rd party by notice, which may look very similar to an equitable easement (Ives Investment Ltd v High)

5. Restrictive Covenants: similar to negative easements

6. Profits a prendre: similar to an easement but involving the right to enter someone's land and take something from the soil Rights capable of becoming an easement: The Re Ellenborough Park Criteria

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There must be a dominant and servient tenement

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The right must accommodate the dominant tenement

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There must be diversity of ownership between the dominant and servient tenement

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The right must lie in grant

A dominant and servient tenement must exist:

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There must be two identifiable pieces of land: one which has the benefit and one which carries the burden London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd

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An easement cannot exist in gross: cannot be exercised by the holder independently of land that he may own: Hawkins v Rutter: this may amount to a license (a mere personal right which need not be attached to a dominant piece of land) 1

Revision: Land

[EASEMENTS]
Accommodating the dominant tenement: Would the right be of benefit to any owner of the dominant land, irrespective of who they are

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Direct beneficial impact on the dominant tenement: makes the dominant tenement a better property

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Right which provides a mere personal benefit cannot be an easement: e.g Alfred Becket v Lyons: right to collect coal by the seaside: purely personal

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Accommodation: whether the right adds value to the dominant tenement (although adding value is not itself conclusive, but a factor to be considered) o

Re Ellenborough Park: 'not sufficient to show that the right increased the value of the property conveyed, unless it is also shown that it was connected with the normal enjoyment of that property': question of factRight to use a garden:

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Argument vs. accommodation: counsel likened the park to use of a Zoological Garden free of charge: increased the value of the property but insufficient nexus between enjoyment and use of the house: independent of use of the house

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But: Evershed MR test of connexion IS satisfied: park was a communal garden for the benefit and enjoyment of those whose houses adjoined it - 'it is the collective garden of the neighbouring houses, to whose use it was dedicated by the owners of the estate'

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A right which facilitates a commercial use of the land is not precluded from being an easement: question is whether the business is a necessary incident of the normal use of the land rather than a completely unconnected business o

Hill v Tupper: Mr H was granted the right to put Pleasure Boats on the Basingstoke Canal. When Mr T tried to compete Mr H went to court claimant he had an exclusive easement. It was held that his right was purely personal: he did NOT have a proprietary rightPollock CB: 'it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee'

2 Revision: Land

[EASEMENTS]
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Moody v Steggles: M claimed that he had an easement of sineage: sign advertising his pub had been there for 40 years. Held that it would benefit future owners of the pub and so DID benefit the land

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Distinction between Hill and Moody: Hill's claim was for the business itself, whereas in Moody the sign was ancillary to the business - no easement for an exclusive right to operate a business

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Sufficiently proximate: without proximity it may be difficult to show there is some benefit conferred o

Bailey v Stephens: Byles J, 'you cannot have a right of way over land in Kent appurtenant to an estate in Northumberland'

Diversity of Ownership

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Rights that an owner has over one part of his own land for the benefit of another part of the land is a quasi-easement, as in Roe v Siddons

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It IS possible however, for easements to exist where the fee simple of both the dominant and servient tenements are owned by one person: diversity by the fee simple owner granting a lease over part of his land

'Lie in Grant'

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Must be able to form the subject of a deed: o

Capable grantor and grantee:separate legal personalitiesgrantor must have sufficient ownership of the servient land to be able to grant an easement

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Capable of reasonably exact description:Cannot be too vague: policy reasons - if it went to court an injunction would been to be very specific

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No easement of prospect: ie right to enjoy a scenic view: William ALdred's Case; Bland v Mosely

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No easement to privacy 3

Revision: Land

[EASEMENTS]

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No easement to a flow of light through undefined channels: Harris v De Pinna

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Copeland v Greenhalf: 'right to use a strip of land to repair vehicles': too imprecise, didn't specify how many cars or for how long etc.

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Right should be within the general nature of rights traditionally recognised as easements:

1. Rights of way: Borman v Griffith

2. Rights of light: Colls v Home & Colonial Stores Ltd

3. Rights to water in a defined channel: Race v Ward

4. Rights to air in a defined channel: Wong v Beaumont Property Trust Ltd

5. Rights to support: Dalton & Angus & Co

6. Rights of drainage through a defined channel and other rights of 'pipeline', for example gas, electricity etc: Atwood v Bovis Homes Ltd

7. Rights to pollute a river: Scott-Whitehead v National Coal Board; or to cause a nuisance: Sturges v Bridgman

8. Right to a garden: Re E.P.; Jackson v Mulvaney

9. Right to storage: Wright v Macadam(this list is not exhaustive): courts are willing to accept new easements, expansion to accommodate social changesHowever: courts are reluctant to recognise new negative easements: Phipps v Pears: Lord Denning MR rejected right to protection from the weather: new negative easements would unduly restrict the servient owner's use and desirable development of his own land

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Hunter v Canary Wharf Ltd: right to a TV signal was rejected as restrictive to the development of the servient land: restrictive covenants more appropriate or else by claiming a recognised type of negative easement (right of light and air)

Additional limitations to becoming an easement 4

Revision: Land

[EASEMENTS]
Three additional factors: i)

Expenditure by the servient tenement owner

ii)

Exclusive possession

iii)

Dependence upon permission by the servient tenement owner

Expenditure by the servient tenement owner

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Where the exercise of the right requires the servient tenement owner to spend money, the right CANNOT be an easement: Regis Property Co Ltd v Redman where the supply of hot water was not an easement (N.B exception in relation to easement of fencing)

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Rance v Elvin: right to passage of water through pipes on the servient land was held to be an easement: First instance said it was not an easement but CA held that it was: distinction - right claimed was not a right to a water supply (which would have required expenditure), but a right to passage of water through existing pipes so that the servient owner's only obligation was not to interfere with the flow of water through the pipes - although the servient tenement owner was legally obliged to pay for the water, the dominant owner was liable in quasi contract to reimburse him for the expense incurred

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Where an easement is found the servient tenement owner is under no obligation to do any repairs or maintenance to enable the dominant tenement owner to enjoy the easement: but he IS obliged to allow the dominant tenement owner to enter to effect the necessary repairs o

Jones v Pritchard: Dominant tenement owner has right to enter servient land to effect repairs

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Access to Neighbouring Land Act 1992

Exclusive possession

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Where the exercise of the right being claimed effectively amounts to giving the dominant tenement owner exclusive possession of the servient tenement, it CANNOT be an easement

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Copeland v Greenhalf: storing vehicles - seen as too wide a use of the land: no justification that 'a right of this wide and undefined nature can be the proper subject-matter of an easement': right effectively amounted to a claim to a joint user of the land - an ouster of the servient owner from the beneficial enjoyment of her land 5

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