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Easements Notes

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EASEMENTS Easements and profits fit within the old category of incorporeal hereditaments. This places greater stress upon the rights rather than the property. They are property rights in that they may bind purchasers of the land adversely affected. The right must benefit the adjoining land. An easement is usually the right to do something on the servient land, or (in a few cases) to prevent something from being done on the servient land. The most common easements are rights of way, rights to run drains across servient land, rights of light and rights of support. However, there is no finite list of easements: rights as varied as storage, use of chimney flues, putting up a clothes line and use of a lavatory have been accepted. Defining the exact requirements of an easement seems to have been a task which has consistently troubled the courts; the usual starting point is the decision in Re Ellenborough Park.


Law Com No 327, paras 3.11-3.70, 3.188-3.211 o An easement can currently be implied by virtue of a number of separate rules:o


Necessity: claims are only successful where land is absolutely inaccessible or useless without the easement. Must exist at time of disposition except where knew would arise at a later date.
? Easements of intended use: where necessary to give effect to the intentions (express or implied) of the parties (e.g. Pwllbach Colliery v Woodman). Can take account of previous negotiations although this does not sit easily with contractual rule set out in ICS v West Bromwich Building Society. Has roots in doctrine of non-derogation from a grant.
? Wheeldon v Burrows: On disposition of part of a property quasi-easements used by the seller may be transformed into easements in favour of the buyer. Can be implied if continuous and apparent, necessary for reasonable use and enjoyment and used at the time of the grant by the common owner for the benefit of the part granted. Transfer does not have to be for value. Can exclude operation of the rule by express provision or implication.
? Recommendations:

* In determining whether an easement should be implied it should not be material whether the easement would take effect by reservation or grant.

* Single test put forward: Easement should be implied where it is necessary for the reasonable use of the land at that date bearing in mind: o Use of the land at the time of grant; o Presence on the servient land of any relevant physical features; o Any common intention as to future use of the land; o Available routes for easement sought' o Potential interference and inconvenience for servient owner. S62 LPA is better regarded as an aspect of the express creation of easements rather than a form of implication. Section can operate to create new easements and profits.
? On conveyance to a tenant of the freehold any property rights annexed are upgraded.
? Other rights which are not profits and easements, but could be, are transformed by their incorporation into the conveyance into interest appurtenant to the estate sold.
? Section 62 overlaps to some extent with the rule in Wheeldon v Burrows because it can transform into an easement a quasi-easement. The overlap is not complete; while section 62 operates only where there is a conveyance, Wheeldon v Burrows will operate where there is only a contract, or where the quasi-easement was being enjoyed at the time of the contract but not of the conveyance.
? Recommendations:

* S62 LPA should not longer operate to transform precarious benefits into legal easements or profits on conveyance of the land.

* Should continue to convert leasehold easements into freehold ones upon conveyance. Easements that confer the right to extensive/exclusive use of the servient land:?A.

As the law stands an easement must not confer exclusive possession of the servient land; nor must it prevent the servient owner from making reasonable use of it. The law should remain that if the dominant owner is granted exclusive possession of land then, while it may be a grant of a lease or a freehold, it cannot be an easement. The ouster principle should be abolished; so long as falls short of exclusive possession than should be a valid easement even if it deprives owner of all reasonable use.



Re Ellenborough Park [1956] Ch 131: Houses were built on plot surrounding a park, conveyed with the full enjoyment of any such easements as should relate to the park so long as they made fair contributions to the upkeep; each covenanting to do so. Park was vested in P who sought declaration as to the nature of the rights which related to the park. Evershed MR: o Listed four characteristics of an easement:??

Must be a dominant and a servient tenement; Easement must accommodate the dominant tenement; Owners of dominant/servient tenement must be different persons: Right must be capable of forming subject matter of a grant; includes following Q's:

* Whether the right is of a too wide and vague character;



o o o

Whether, if effective would amount to joint occupation or would substantially deprive the owner of legal possession;

* Whether the rights are ones of mere recreation, possessing no quality of utility or benefit, and on such grounds cannot qualify as easements. Clear from the deeds that owners were engaged in a scheme of development designed to produce a result of common experience; a row of houses facing a park which was appurtenant to each and all of them;
? In substance the park was a single large private garden for the residents:
? Does not matter that some plots did not directly face the park. Whilst clear that the park did enhance the value of properties, that is not sufficient for accommodation; must also show that it was connected with the normal enjoyment of the property, the connection being one of fact which depends largely on the nature of the tenement and the right granted. Rejected submission that the right was personal only (akin to one to play on cricket ground for free) and claimed that was like a garden; that being something which enhances ordinary enjoyment of land. The right was not one of joint occupation and did not offend against notion of proprietorship or possession of that land by the owner; so, Copeland v Greehalf does not apply.


Crow v Wood [1971] 1 QB 77: Farms were let to persons for keeping sheep on the land, with those renting agreeing to keep the fences in repair. P did not keep to agreement and then brought action for cattle trespass o Court agreed that the duty to fence against trespassers was an easement capable of being granted at law so as to run with the land and be binding on successors. o Lord Denning thought that was easement by virtue of s62, whereas other judges preferred to reserve judgement on whether there was an easement or quasi-easement as not necessary for decision.


Egerton v Harding [1975] QB 62: P & D (neighbours) shared grazing rights over common land which P chose not to exercise. D's cattle got into P's garden through gaps in hedge; P sued for cattle trespass. Scarman LJ: o A duty to fence can arise by grant or custom; once the obligation has been established it remains provided that it can be shown that such a duty arise from a lawful origin (no matter which one).


Liverpool CC v Irwin [1977] AC 239: Tenant's alleged that Council was in breach of duty to repair common parts of a tower block over which they retained control. Council denied existence of the duty. o Lord Wilberforce:o o

As a matter of contract law, easements with respect to lighting and maintenance must be implied by virtue of necessity; quality of the purported tenancy could not be granted without them.
? Accepts as a general argument that grant does not imply obligation on the servient owner to maintain the subject of it at his own expense; expense is generally for dominant owner.
? Thought this case was different in that it concerned an essential means of access and that if the duty to maintain has not been placed on tenants then must lie with the landlord.
? Did not imply absolute obligation of repair but one to keep area in a reasonable state; as what fits requirements of the case; this is no more than would be expected of reasonable tenants. Lord Cross: Agreed with above noting that will only imply where necessary to give business efficacy to the contract; thought landlord should be under this kind of obligation unless expressly excluded. Lord Edmund Davies: Saw no difficulty in the fact that imposed financial burden on servient owner.

1. Need for dominant and servient tenement 2

The nature of all incorporeal hereditaments is that there must be land adversely affected by the right, and there must be land which is benefited by the right. There is no conclusive reason for this rule. The rule is almost universally assumed to have existed for centuries, which explains why authority to support it is thin on the ground. It has been questioned as to how far the rule is beyond challenge and whether it encapsulates sound judicial policy. It is more questionable whether there is sufficient policy justification for the rule. It may be argued that economically valuable rights could be created as easements in gross. Nevertheless, the courts have always been reluctant to allow landowners to create new forms of interest, illustrated by the rejection of the contractual licence as an interest in land.


London & Blenheim Estates v Ladbroke Retail Parks [1992] 1 WLR 1278: L transferred land to P along with easements and rights pertaining to it, including a right to park. Also in agreement was that if L obtained more land could have parking rights; later tried to assert when more land obtained. Blake QC: o Easement cannot be created unless there is a dominant and a servient tenement: never occurred in this case as before dominant tenement had been acquired the servient tenement had been disposed of. o The question whether there can be a future easement is one which may arise after but not before the dominant and servient tenements have been identified as being in the separate ownership of the grantee and grantor respectively. o Other comments:??Easements can be annexed to leasehold land; leases of at least 21 years can be registered. Wright v Macadam shows that a valid easement can subsist which involves the exclusive occupation of a shed or other piece of the servient tenement. It is unfortunate that Wright v Macadam was not cited In Copeland v Greenhalf, but it probably would not have made any difference; the matter must be one of degree. A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another. Rejects the submission that Copeland was wrongly decided. There appears to be clear authority for the point that a right to park can exist as an easement. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it cannot be an easement though it might be some larger or different grant.

2. "Accommodation" The dominant tenement must be accommodated (benefited) by the easement. The nature of the requirement is that it must affect the land directly, or the manner in which the land is used. The crucial point to stress is that it must be the land that benefit's rather than the owner of the land. Whether a recognised easement benefits land in a particular case is a question of fact. There is no requirement that the dominant and servient land be adjacent to each other. It is no objection that the easement relates to a business of the dominant owner.


Hill v Tupper (1863) 2 H & C 121: Company granted P sole and exclusive right of using canal for setting up a boat hire business. o Parties cannot create new forms of easements; law does not recognise personal rights; refusal to warrant extension of the law in this way as would increase potential estates to an indefinite amount. o Note that also smacked of commercial agreement rather than one pertaining to the land.


Moody v Steggles (1879) 12 Ch D 261: Owner of pub claimed right to put adverts on D's house. Advert had been there for the previous 40 years; the two properties having formerly been owned by the same person. Fry LJ: o Where there has been long enjoyment of a property in a particular manner is it the habit and the duty of the court, in so far as possible, to clothe that fact as a right. o To claim that right relates to P's business rather than property is to refine the question too narrowly; the house can only be used by an occupant, and the occupant only uses the house for the business which he pursues, and therefore in some manner (direct/indirect) an easement is more or less connected.


Polo Woods Foundation v Shelton-Agar [2010] 1 All ER 539 at [32]-[60], [90]-[91]: P used land to graze horses. A parcel of land which he thought was his instead turned out to be D's. P claimed right of easement by prescription to graze his horses on that portion. Warren J: o Makes comments on terminology:Concept of normal enjoyment can create difficulties in some cases when having to determine whether there is a sufficient nexus between land and benefit; thought that to use a farm for horses was just as usual as for cows or crops;


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