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What is an easement?
An easement is the proprietary right of one landowner to enjoy the limited use of the land of another. As a result of this, there are two pieces of land:
(a) The dominant land - to which the right is attached and thus enjoys the right
(b) The servient land - over which the right is exercised and thus must suffer the burden of the right
Distinction can be drawn between two types of easement:
(a) Positive easement - allows the owner of the DT to use some facility upon the servient land a. For instance, a right of way to use a path or road
(b) Negative easement- allows the owner of the DT to receive something from the land a. For instance, a right to receive light or air from the servient land i. It is negative in nature because the DT owner is not entitled to do anything over the land
Easements are property rights which are capable of binding third parties
B's consent for A to go across B's land is a license of will - this is not an easement
A might bolster this license by way of a contract, however A still faces difficult when B sells their land to C
As property rights, easements are governed by the numerus clausus principle
Parties do not have the power to create a new type of property right
What are the requirements of an easement?
In Re Ellenborough Park a park was placed across from a row of houses. The person owning the park gave the builders of the houses "full enjoyment at all time hereafter" when selling the land to build the houses. The residents of the houses applied for the right to be recognised as an easement.
Held: This did constitute an easement
In this case Lord Evershed MR set out the four requirements of an easement:
(a) Dominant tenement and servient tenement
(b) Tenements owned by different people
(c) The right must accommodate and serve the dominant tenement a. Proximity b. Benefit
(d) The easement must be capable of forming the subject matter of a grant a. No positive burden on the servient owner b. Easement cannot be purely negative c. Certainty in the scope of the grant - the nature and extent of the burden must be clear d. Cannot amount to exclusive possession (the ouster principle)
Dominant and Servient Tenement
X owns (have a freehold or leasehold title) of a nearby plot of land himself (DT) in order to have an easement.
In Rangeley it was confirmed that, as a result, a public road or highway is not an easement, but rather a dedication to the public - a person walking on a road does not need to own a plot of land
In London & Blenheim Estates, A and B tried to finalise the easement (when B purported to grant it), but A did not yet own the DT in respect of which the parking spaces were to be used
Held: An easement was not effectively granted
At the moment of the grant of easement, A must have the freehold or leasehold title
Peter Gibson J said that "If one asks why the law should require that there should be a dominant tenement before there can be a grant, or a contract for the grant, of an easement sufficient to create an interest in land binding successors in title to the servient land, the answer would appear to lie in the policy against encumbering land with burdens to an uncertain extent … A further related answer lies in the reluctance of the law to recognise new forms of burden on property conferring more than contractual rights"
According to the rule in Harris v Flower, a dominant owner who acquires additional land adjacent or close to the dominant land cannot use this easement for the benefit of the additional land.
Using the easement for the benefit of the additional land will oft constitute a trespass on the servient tenement
Harris v Flower envisages a situation where it is necessary to pass through the servient land to access the dominant land, and necessary to pass through the dominant land to access the additional land
The dominant owner might seek to argue, however, that the original easement encompasses the use of the right in relation to the additional land
In Peacock v Custins Schiebsmann LJ said that "The law is clear at the extremes. To use the track for the sole purpose of accessing the blue land is outside the scope of the grant. However in some circumstances a person who used the way to access the dominant land but then goes off the dominant land, for instance to picnic on the neighbouring land, is not going outside the scope of the grant"
o This was later refined in Macepark Ltd v Sargeant, where Gabriel Moss QC
(sitting as High Court judge)
"(1) An easement must be used for the benefit of the dominant land.
(2) It must not "in substance" be used for the benefit of nondominant land. (3) Under the "ancillary" doctrine, use is not "in substance" use for the benefit of the non-dominant land if (a) there is no benefit to the non-dominant land or if (b) the extent of the use for the benefit of the non-dominant land is insubstantial, i e it can still be said that in substance the access is used for the benefit of the dominant land and not for the benefit of both the dominant land and the non-dominant land. (d) "Benefit" in this context includes use of an access in such a way that a profit may be made out of the use of the non-dominant land, e g as a result of an arrangement with the owner of the dominant land.
In Peacock v Curtis the question of benefit was answered in respect of whether or not the use had its own "commercial value"
Orthodoxy has suggested that easements are appurtenant to the grantee's estate in the dominant land, rather than being appurtenant to the dominant land itself
As a result, where a lease over the dominant land is terminated, an easement enjoyed by the holder of the lease would also cease
BUT: Per Wall v Collins, where the owner of a leasehold converts his interest into the freehold, the easement will not cease to exist
Tenements Owned by Different People
It is impossible to have an easement over your own land per Roe v Siddons.
If the DT and ST come only into the same occupation, the easement is suspended until the period of common occupation ends
For instance, if a tenant takes a lease of both pieces of land
If the DT and ST come in to the same ownership, the easement is destroyed
Right Must Accommodate and Serve the Dominant Tenement
The right must benefit the land, as opposed to the individual owners of the land. There are two separate aspects to providing this accommodation:
(a) Proximity -
a. It was said in Bailey v Stephens that there is no way that the ST can accommodate the DT if there is no physical proximity i. Often see people in central English cities trying to create easements in seaside holiday towns over holiday shacks etc. - they find that they can only create contractual agreements because ST does not accommodate DT (their home property).
b. Evershed MR also explained the need for proximity in Re Ellenborough Park i. It was not, however, an objection that some of the houses did not immediately border the park but were a short distance away in that case
(b) Benefit -
a. As above, the easement must benefit the land and not the DT owner b. The requirement of benefit was taken loosely in Re Ellenborough Park i. The park was not merely used for exercise and rest but for 'normal domestic purposes' such as taking children out in prams - these were beneficial to land to which it is attached.
c. The following tests have been suggested for the benefit requirement:
i. Byles J in Bailey v Stephens said that the easement must have some natural connection with the estate as being for its benefit
1. BUT: the court in Polo Woods said that this test focussed too much on the economic value of the property ii. Evershed MR created a test of reasonable necessity in Re
Ellenborough Park - the easement must be reasonably necessary for the better enjoyment of that tenement.
1. BUT: in Polo Woods it was said that Evershed MR could not have intended to create a test of reasonable necessity -
arguably the facts of Re Ellenborough wouldn't even satisfy this test iii. Warren J stated in Polo Woods that the real test is one of close connection - it must be shown that the use of the ST is somehow benefitting X in his capacity as the DT owner
1. There must be some connection between the use of the ST
and DT owner's freehold leasehold title d. Difficult cases arise where the ST provides for recreational activities - does this count as benefitting the DT owner in their capacity as freeholder/leaseholder of the DT?
i. In Moody v Steggles it was said that if the easement relates to the purpose for which the land is used it can benefit the land even if it clearly also confers a personal benefit on C
ii. In Regency Villas Lord Briggs said that the law should accommodate new types of property ownership and new ways of enjoying land
1. He said that "Views of society as to what is mere recreation or amusement may change …physical exercise is now regarded by most people as either essential or at least desirable part of a daily routine"
2. Once you accept that using a central park area can be an easement despite being recreational (as in Re Ellenborough
Park) there is no logical reason not to extend this to include more elaborate things, such as use of a tennis court
3. The intention of the parties in Regency Villas was that the ST
would be used in an easement like way a. Difficulty should be noted with the decision in Regency
Villas: easements are becoming increasingly complicated. If you have a right of way, it is easy to maintain. A swimming pool however requires a lot of maintenance and thus interaction and cooperation between DT and ST
i. This potential leads to the imposition of a burden on the ST owner - contrary to the capable of grant requirement
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