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Easement Notes 1 Notes

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What is an easement?
- Easements are incorporeal hereditaments; they comprise certain limited rights that one landowner may enjoy over the land of a near neighbour.
- Every easement will involve two separate pieces of land.
- Dominant tenement: the benefited land, enabling the owner of that land to use the easement.
- Servient tenement: the burdened land, requiring the owner of that land to suffer the exercise of the easement.
- An easement, once created, are proprietary in nature; it may be enjoyed or suffered by any subsequent owner of the dominant or servient land.
There are two types of easements:

1. Positive easements: is an easement that permits the owner of the dominant land to do something on the servient land (e.g use a path or run pipes over the servient land).

2. Negative easements: easements that limit what the owner may do on the servient land.
In essence what this means is that, the owner of the servient land may not be able to exercise certain rights because it may interfere with the right of the dominant land (e.g a right to light, the owner may not be able to erect a large tower).

Four essential characteristics of an easement *Re Ellenborough Park (1956) :
1) There must be a dominant and a servient tenement.
2) The dominant and servient tenements should be owned or occupied by different persons. E.g Metropolitan Railway Co v Fowler [1982] 1 QB 165.
3) The alleged easement must accommodate (i.e. benefit) the dominant tenement.
 Regency Villas v Diamond Resorts [2018] UKSC 57; [2018] 3 WLR
1603, paras.[39]-[42] and [57]
 Moody v Steggles (1879) 12 Ch D 261 4) It must be capable of forming the subject matter of a grant.
 Moncrieff v Jamieson [2007] UKHL 42, [2007] 1 WLR 2620
 Coventry (t/a RDC Promotions) v Lawrence [2014] UKSC 13, [2014]
2 WLR 433
 Regency VillasSatisfying all of these criteria means that it is capable of being an easement.
The right must be created as an easement using the appropriate formalities.
Legal easement: deed (plus registration in some cases) or prescription.
Equitable easement: enforceable written instrument or proprietary estoppel.
Confines the ambit of easements to rights that truly benefit other land,
as opposed to merely benefiting a particular person. Crow v Wood [1971] 1 QB 77
-Denning MR: a right to have your neighbour maintain fences = a right in the nature of an easement
-Hence it can pass under s.62
-An exception to the rule that you can only have an easement to do something yourself / prevent someone else doing something
Egerton v Harding [1975] QB 62
- Easement distinct from custom
- If you can establish immemorial usage of fencing as a matter of obligation,
duty proved (so long as it could've come from lawful origin)
- Sharon LJ: Evidence the hedge was maintained was NOT enough - you have to show it was maintained as an obligation to the adjoining owner
- They reject the view of Edmund Davies in Crow v Wood that where land accustomed to be fenced, it being voluntary is immaterial
Liverpool CC v Irwin [1977] AC 239
- Tenants withhold rent in protest of poor conditions.
- HL found implied-in-law obligation to maintain common parts of towerblocks.
- Although this was fulfilled since Ds spent more on repairs than it received in rent.
- HL rejected Denning's reasonableness approach in favour of necessity but reached the same result.
- Lord Atiyah said not much different: "necessary seems to mean reasonably necessary having regard to the context."
- Subject matter of lease demanded some obligation on part of landlord.
1st characteristic: there must be a dominant tenement and servient tenement.
 confines the scope of easements to those rights that truly benefit other land,
as opposed to merely benefiting a particular person

Every easement is linked to two pieces of land
An easement must exist in connection with a piece of land. It cannot exist independently (in gross, like a profit a prendre)
A profit is the right to make take something from another person's land, e.g game, fish, turf, minerals and grazing by animals.

Identifying the Dominant Tenement :
London & Blenheim Estates ltd v Ladbroke Retail Parks ltd [1992]
Facts: The Leicestershire Co-op owned land in and around one of their stores in
Leicestershire to London & Blenheim Estates.
 the sale included the right to park cars on the remaining adjacent land which the Co-op still owned.
 Part of the agreement stated that if London & Blenheim Estates wanted to purchase more land, they were to contact Coop before they make the 

purchase, so that they are able to get similar parking rights for their new land.
At some point, The Co-op sold its remaining land to Ladbroke. After that sale went through, London & Blenheim Estates purchased more land and wished to obtain parking rights for it.

Issue: The issue in the case was whether London & Blenheim Estates were able to obtain the extra parking rights they sought for the new land they had purchased.
Held: No easement as needs identifiable dominant and servient tenement before courts could grant or contract to grant an easement.
The court held that London & Blenheim Estates could not claim for new parking rights for the new land they had purchased. This was because the agreement had not properly identified the dominant tenement. Following Ashburn Anstalt v
Arnold [1993] 4 All ER 157 certainty on the point of the dominant and servient tenement are of key importance to the establishment of an easement. Therefore,
lack of such certainty is destructive to a claim of an easement.
Identifying the Servient Tenement
A right will not be an easement if it imposes an obligation over a very large and indefinite area. (Pwllbach Colliery v Woodman 1915).
The need for dominant and servient tenement limits the impact of easements on the servient land- so that not everybody is able to enjoy rights over the servient land- and confines the ambit of easements to those rights that truly benefit other land.

2nd Characteristic: An easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefits
Accommodate in this context means benefit (i.e confer a benefit on the dominant land).
Lord Evershed in Re Ellenborough Park emphasised that:
"an easement accommodates and serves the dominant land, is reasonably necessary for the reasonable enjoyment of the that land , for if it has no necessary connection therewith, although it confers an advantage upon the owner and renders his ownership more valuable, it is not an easement at all, but a mere contractual right personal to the two contracting parties"
Confines easements to those rights that attach to the land not 'merely' to the person who currently owns and occupies the land. (It must not be a personal benefit.
The general idea is that the easement must benefit the user of the land, the value of the land or the mode of occupation of the land (like the idea of touch and concern in restrictive covenants)
NB: there are no set criteria for judging whether an alleged easement is sufficiently proprietary in nature and each case must be decided on its own facts. The following guidelines gives flavour of what is required under this characteristic, but there may be exceptions in peculiar or special circumstances 1) Geographical nexus: the servient tenement must be sufficiently proximate (i.e near) to the dominant tenement to be able to confer a benefit on it. For example, in order for a right of way over the servient land to benefit the dominant land, the plots of land are going to have to be close to each other. Thus, in this scenario the two tenements have to be adjacent, or share a common boundary to satisfy this requirement.
Nonetheless, in general the more physically separate the two properties,
the less likely it is that a court would regard an alleged easement over one is benefiting the other.
Case law: Bailey v Stephens [1862] Byles J
" you cannot have a right of way over land in Kent appurtenant
(belonging to) to an estate in Northumberland"

2) The alleged right must not confer a purely personal advantage on the owner of the dominant tenement: This is firmly fixed in case law.
Hill v Tupper [1863]
Facts: the plaintiff, Mr Hill, entered into a contract with the Canal company

the owner of a canal granted the claimant (Mr. Hill) the right to put pleasure boats on the canal for profit

The defendant, Mr Tupper, however also hired boats out on the same canal

Mr Hill was minded to curtail the activities of Mr Tupper and thus started the action. (It was based on the claim that his rights under the contract with the Basingstoke Canal Company constituted an easement), which gave him property rights which he could enforce against Mr Tupper.
Issue: whether the contract granted to Mr Hill could be seen to have created a valid easement and therefore provided him with property rights.
Held: The court held that a valid easement could not be created in this way and that Mr Hill did not receive any property rights under the contract The Court observed that the benefit from an easement
must be for the land, whereas in this case the benefit was solely for the business
Mr Hill therefore had no property rights which he could enforce against Mr
Tupper and Mr Tupper could not be compelled, through this action at least, to cease hiring out boats on the canal. The Basingstoke Canal
Company could, however, prevent Mr Tupper from hiring boats out on the canal by asserting its property rights and therefore Mr Hill's proper course of action is to ask the Canal to do so. NB: However, it is a mistake to think that rights cannot be easements simply because they confer a commercial or business advantage on the alleged dominant tenement. It is not the commercial nature of the right granted that is important, but whether the commercial advantage endures as an aspect of the benefitted estate, or in contrast, whether it is given to a person irrespective of whether he owns an interest in the land. So, in
Moody v steggles (1879)
It was accepted that there could be an easement to hand a sign advertising a pub on neighbouring land because this benefited a trade or occupation taking place on the dominant tenement. In essence, there has to be a connection between the substance of the right claimed and the alleged dominant land. The right has to be for the dominant land. Consequently, the issue is not whether a commercial use is being facilitated by the easement, but whether the alleged easement is so connected with the land that the 'benefit' accrues to the current owner.


It is unlikely that a right that confers a vague and general
'recreational use' on the dominant tenement will be accepted as an easement. For example, a right to wander over open countryside or parkland is unlikely to be accepted as an easement.

Given that purpose of an easement exists to enhance the social and economic value of land, by giving benefits and imposing burdens on the land as such, it is not to be used for the provision of public amenities. However, this a PURE AND UNDEFINED recreational use is suspect.


Lastly, the alleged easement does not have to 'accommodate' the dominant tenement, it does not have to be 'needed' by the dominant tenement. It is enough if the alleged right has a sufficient connection with the dominant land and enhances its utility even though the dominant owner had other means of achieving the same advantage. As per Polo-Woods v. Shelton- Agar (2009.

London and Blenheim Estates v Ladbroke (1992): a right to park on adjoining land and to walk across it with shopping trolleys was capable of being an easement for the benefit of the dominant tenement (there was a supermarket on the land)
- Hence, the alleged easement must be so connected with the land that the 'benefit' accrues to the current owner because he owns an estate in the land
- Given that the law of easements exists to enhance the social/economic value of land, it cannot be used to provide benefits for the public at large 3rd Characteristic: Dominant and Servient landowners must be different personsA tenant can enjoy an easement over the landlord's land
If the occupier of the land is a mere licensee, no easement can be created between him and the estate owner (Wright v Macadam)
because the licensee owns no estate in land
If they both come into the same occupation, the easement is suspended for the duration of the common occupation and may be revived .

if the dominant and servient land comes to be vested in the same person then the easement is extinguished, as per, Roe v Siddons (1888).

4 th Characteristic: The right must be capable of forming the subject matter of a grant
The fourth condition identified in Re Ellenborough Park is that the alleged easement must be capable of forming the subject matter of a grant.
To be an easement, the right has to meet the standard of clarity and certainty such that it could have been 'granted'.
This a broad criterion and allows the court to exercise considerable discretion in deciding whether any right is capable of being an easement. Technically, the point is that every easement must be capable of being expressly conveyed by deed (even if it is created in some other way).
Case law has established five factors in identifying 'easement-type'


Must not be too wide and vague


Must not deprive servient owner of possession (Outser principle)


Not a mere right of recreation or amusement


No new negative easements


Not involving expenditure

A: Must not be too wide or vague no 'right to wander at will over a large and ill-defined area'- Re Ellenborough park

Right to wander at will- not an easement

Right to an attractive/scenic view- not an easement (Campbell v
Paddington Corporation)
 Right to the flow of air to a windmill- no an easement (Webb v Bird
 Right to Light (Wheeldon v Burrows (1879))
B: Must Not Deprive a Servient Owner of Possession (OUTSER PRINCIPLE) Cite
Law Com No 186 (2008), 3.34:
It is important to distinguish lesser interests in land, like easements, from rights in land that are possessory in nature such as leasehold and freehold estates in land.
This follows from the nature of an easement, as a right that one landowner has over the land of another: whilst the dominant owner exercises rights over the servient land, the servient land continues to belong to the servient owner. It is implicit in this definition that if the dominant owner is entitled to treat the servient land as his own property - that is, as if he has a possessory estate in that land - his right cannot be an easement. In our view, easements and possessory interests in land must be mutually exclusive.
Oust: drive our or expel (someone) someone from a position or place.
For example, in Copeland v Greenhalf [1952] (right to store cars)
Facts: a claim to leave an unlimited number of vehicles for an indefinite time on a strip of land belonging to a neighbour and to enter on that strip to do repair work thereon is not a claim which can be the proper subject-matter of an easement
 The defendant claimed an easement to store vehicles on a strip of land 20-35 feet wide and 150 feet long and to repair them on that strip,
provided an adequate means of access to the plaintiff's orchard was left.
 such adequate means being a width of something like 10 feet. The defendant established that he and his predecessors had for the last 50 years used that strip of land for such purposes in connection with their business as wheelwrights
Held: no easement could exist to store tools of the trade on the servient land.
the right claimed went wholly outside any normal idea of an easement; it really amounted to a claim to a joint user of the land by the defendant; this was not a claim that could be established as an easement. As per the case in, Hill v Tupper and Moody v Steggles applied.

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