Easement Notes 6o5n3h

Easement Definition An easement is an incorporeal (does not have value in material form) hereditament, comprising in essence either a positive or a negative right of over the land of another. In effect an easement is a right annexed to one piece of land (dominant tenement) to utilise land of different ownership (servient tenement) in a particular way, indeed, to prevent the owner of that land from utilising his own land in a particular way. •

Incorporeal hereditament

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Property not personal property

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Land benefits not the people

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Right annexed to land in order to use the land in different ownership, in a particular manner -> connect to the land

Legal and Equitable Easement Legal Easements Since 1926 the only easements capable of subsisting at law are easements for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute (Law of Property Act 1925 s 1(2)(a)). A legal easement is an easement capable of subsisting at law which has been validly created at law (Law of Property Act 1925 ss 1(4), 205(1)(x) as amended by the Trusts of Land and Appointment of Trustees Act 1996 s 25(2), Sch 4), namely by statute, deed or prescription3. An easement which does not take effect as a legal easement takes effect as an equitable interest and is called an equitable easement. Equitable easements An equitable easement is a proprietary interest in land such as would before 1926 have been recognised as capable of being conveyed or created at law, but which now takes effect only as an equitable interest (Poster v Slough Estates Ltd [1969] 1 Ch 495 at 507, [1968] 3 All ER 257 at 262). The class of equitable easements includes those easements which, if created in the same manner before 1926, would have taken effect as legal easements, but which by virtue of the Law of Property Act 1925 s 1(2)(a) are no longer capable of subsisting at law and thus take effect, if at all, as equitable interests (ER Ives Investment Ltd v High [1967] 2 QB 379, [1967] 1 All ER 504, CA). Positive and Negative Easements

Easements and other rights

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3 key conditions, must answer all three conditions for an easement to be valid 1. Is the right capable of being an easement? (Nature of Easement) 2. Has it been acquired as an easement? 3. What is the effect of easement on third parties? IS THE RIGHT CAPABLE OF BEING AN EASEMENT? Nature/ Essence of an easement Re Ellenborough Park [1956] a) There must be a dominant and servient tenement b) Dominant and servient person must be different persons c) The right must accommodate/ benefit the dominant tenement d) The right must be capable of forming the subject matter of a grant / lie in grant 1) There must be a dominant and servient tenement London & Blenheim Estates v Ladbroke Retail Park [1994] Dominant tenement – the land which has the benefit of the right claimed Servient tenement- the land which the right is exercised over, hence bear the burden of the right/ obligation 2) Dominant and servient tenement must be different owners Cannot have an easement over your own land-> essentially you cannot have a right against yourself if you are both the dominant and servient tenement Roe v Siddons [1888] 3) An easement must ACCOMMODATE the dominant tenement Right claimed must be of benefit to the dominant land, not the people Would the right still benefit if the dominant tenement were sold to another party? NOT a test of financial value. Not increase the value of the tenement -> don’t write it in the exam but it is a good indication Hill v Tupper [1863] Property law right -> enforce it against the world -> stop Tupper who infringe Hill’s property, action for tres

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Re Ellenborough Park [1956]

Moody v Steggles [1879]

What happens if the dominant owner wants to use the easement to benefit other land that he owns, but that land wasn’t identified as benefitted land? Not permitted, keep to the agreed -> same applies if the dominant owner buys more land and asks for the benefit of the easement to be extended to this land as well. Peacock v Custins [2001]

Das v Linden Mews [2002]

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4) The right claimed must LIE IN GRANT The easement must be capable of being grated expressly in a DEED. 4 requirements •

There must be a capable grantor and grantee

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The right must be sufficiently definite, being capable of existing as an easement -> one big circle

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The right must be analogous to existing easements

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The right must not totally exclude the servient owner

There must be a capable grantor and grantee Grantor- the person who grants you the right Grantee- the person to whom the right is given Who has the capacity to grant? The right must be sufficiently definite Must be able to define and identify the right you wish to claim as an easement •

Definition of “right’ William Alfred’s Case [1610] – Right to a view

Importance of Precision Bryant v Lefever [1879]

Cable v Bryant [1908] Screen with a hole in it, right to the air flowing through that gap

Hunter v Canary Wharf [1997] Re Ellenborough Park [1956]

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Exclusive or t possession

Easement or a lease -> must be very careful For an easement to lie in grant, it must claim under non exclusive possession Exclusive possession = freehold or leasehold estate When I am claiming the right to use a piece of land, then I am claiming an easement The right must not totally exclude the servient owner. The dominant owner must ensure that the right does not prevent the servient owner from using his land altogether. Exclusive possession of premises is more indicative of the creation of a lease, which is an estate in land and which gives the DO the ownership of the land for a set period of time. An easement is only a right over the land, not possession of it. Wright v. Macadam [1949] 2 KB 744 Not a claim to exclusivity

Copeland v. Greenhalf [1952] Ch 488 House of orchard, ading land and strip of land. Plaintiff says defendant can put vehicles on the strip of land. Business grew, vehicle numbers grew. Friendly gesture from neighbour? Or right in easement?

Grigsby v. Melville [1972] 1 WLR 1355 Cellar , claim a right to store things in the cellar “as much as he wants to, as long as he wants to” Asking too much- courts say cannot. Must be limited

London & Blenheim Estates v. Ladbroke Retail Parks [1992] 1 WLR 1279

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Batchelor v Marlow (2001) 82 P & CR 459 Right to park 6 cars on a strip of land, all day Trouble was this was in an industrial area Claiming a lease NOT an easement, excluding the true owner (claim too much)

Moncrieff v Jamieson [2007] UKHL 42 Car parking can be an easement, right to access doesn’t mean right to park. Hair v Gillman [2002] 80 P& CR 108 Claim 1 space out of 4 Capable of being an easement, not claiming for exclusivity

Central Midland Estates v Leicester Dyers [2003] 2 P. & C.R. DG1 Failed -> define the claim in a limited manner so that the true owner can use the land

** Montrose Court Holdings Ltd v Shamash [2006] EWCA Civ 251 Service roads to some blocks of flats More cars owned by people in the flat, land owner suggested to ration car parking. 1 parking permit per flat, only 72 hours at a time. Residents objected Right to park can be an easement -> managing the exercise of the easement -> not preventing or excluding anybody Conflicting easement

Platt v Crouch [2004] 1 P. & C.R. 18 Page | 6

Level of use is appropriate

Jackson v Mulvaney [2003] 1 W.L.R. 360

** Miller v. Emcer Products [1956] Ch 304 – understanding Exclusivity Toilet can be deemed as an easement

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Negativity

Negative easements are slightly more problematic, do they lie in grant? Limits the servient owner can do, i get the right to limit what you do. Eg: protection against the weather Semi detached house, one house is knocked down, walls are exposed. Cause damages. Me, living in the other house. Do i have a right to expect the other party to weather-board /protect the boundary? Definition of negative easement : is one where the right exercised by the dominant owner prevents the servient owner from doing something on his land ** Phipps v. Pears [1965] 1 QB 76 Eg: Right to light (neighbour block your light, do you have a right to claim?) Courts refused to recognise the right to an easement of protection against the weather for a building when the ading house was demolished.

Rees v Skerrett [2001] 1 WLR 1521 Courts proposed that “weather boarding” should be dealt in the law of tort

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Dyce v Lady James Hay (1852) 1 Macq. 305 Open to concepts

Hunter v. Canary Wharf [1997] 2 All ER 426 Negative easements restricted 4 sorts of negative easements - right to light, to (right to stop your neighbour from knocking something down that will cause your property to lose ), to a flow of air through a limited defined channel, to a free flow of water from ading land

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Capable of being an easement : Expenditure (Money) ?? Easements do not require the servient tenement to spend money. If they do, they are not an easement. Exception to the general rule: Crow v. Wood [1971] 1 QB 77 Courts held that there was an obligation on a land owner to fence fields to stop other people’s live stock from tresing on the land. Land owner (servient) must spend money to build the fence

Liverpool City Council v Irwin [1977] AC 239

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Intention What the parties intended in the agreement? IDC Group v. Clark (1992) 63 P&CR 179

HAS IT BEEN ACQUIRED AS AN EASEMENT? The creation of an easement – EXPRESS or IMPLIED GRANT OR RESERVATION Application of Section 1 LPA 1925 The grant of an easement (must be at least one of them)  Express grant in a deed (legal easement)  Express grant in a written contract (equitable easement)  Implied grant of necessity (legal easement)  Implied grant of mutual intention (legal easement)  Implied grant under the rule of Wheeldon v Burrows (legal or equitable easements)  Implied grant under Section 62 LPA 1925 (legal easement)  Presumed Grant: Prescription (legal easement) 1) EXPRESS Legal easement -> deed + registration

Express reservation -> also be deed + ed What does reservation mean?

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2) IMPLIED – no person may derogate from their grant i.

Easements of necessity- it is so essential to the dominant land

Presuming an intention between the party

Nickerson v. Baraclough [1981] Ch 426

Manjang v. Drammeh (1991) 61 P&CR 194

Wong v. Beaumont Property Trust [1965] 1 QB 173 Restaurant case

Stafford v. Lee (1992) 65 P&CR 172 Show common intention, show the use is necessary to give effect to the common intention

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ii.

Rule in Wheeldon v Burrows

‘ on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will to the grantee (1) all those continuous and apparent easements, or, in other words, (2) all those easements which are necessary to the reasonable enjoyment of the property granted, and which (3)have been and are at the time of grant being used by the owners of the entirety for the benefit of the part granted’

Ward v. Kirkland [1967] Ch 194

Borman v. Griffiths [1930] 1 Ch 493.

Wheeler v JJ Saunders Ltd [1995] 2 All ER 697, CA.

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iii.

Section 62 LPA

62.(1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, water, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof. (2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, ages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land, houses, other buildings conveyed, or any of them, or any part thereof. S62 Situation must occur where there is a PRIOR DIVERSITY of occupation of the dominant and servient tenement. Meaning to say, different people occupy the D & S land where there is a RECONVEYANCE of the D land. Under S62, anything that is attached to the D land, can be implied as an easement. Provided, it is capable of being an easement (Re Ellenborough case) Most common situations are those licences -> growing into an easement 4 main examples: 

Seller lets the purchaser into possession prior to completion of transaction

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Landlord lets the tenant in advance before sorting the lease out – Goldberg case

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Lease is renewed – Wright v Macadam

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Tenants buy out the freehold – Kent v Kavanagh

Conditions for converting a right/privilege/advantage into an easement 

S62 must not be expressly excluded; and

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The right that is being claimed must be capable of being an easement by meeting the conditions in the Re Elleborough Park case; and

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The D and S tenements are owned by one person but there is a separate occupation of the D and S tenements; and

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The owner of the servient tenement uses a deed to sell or transfer the dominant tenement to the occupier; or

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The owner of the servient tenement used a deed to grant or renew a lease of the dominant tenement to the occupier; or

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The owner of the servient tenement uses a written agreement to grant or renew a lease of the dominant tenement for 3 years or less to the occupier

Wright v. Macadam [1949] 2 KB 744

Goldberg v. Edwards [1950] Ch 247

Hair v Gillman (2000) 80 P&CR 108

Kent v Kavanagh [2006] 3 WLR 572

Wall v Collins [2007] Ch 390

Long v. Gowlett [1923] 2 Ch 177

P&S Platt Ltd v Crouch [2003] EWCA Civ 1110.

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Implied Reservation Adealon International Proprietary Ltd v Merton LBC [2007

3) PRESUMED GRANT : Prescription (don’t need to learn it in detail) Basis for a claim in prescription is that you have used the right for a sufficiently long period of time. The idea here is that if you do something long enough it becomes legal. A claim in prescription presumes that the right was formally granted to you or your predecessors in the dim and distant past by means of a deed. General points: Glamorgan CC v. Crater [1963] 1 WLR 1 Cargill v. Gotts [1981] 1 WLR 441

Conditions i.

The claimant must establish “ as of right”

Bakewell Management v Brandwood [2004] 2 WLR 955 ii.

Use must be of nec ni, nec clam, nec precario

Without force, secrecy and permission Dalton v Angus (1881) 6 App Cas 740

Diment v. Foot [1974] 1 WLR 1427

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Jones v. Price [1992] EGCS 04

Mills v. Silver [1991] 2 WLR 324

iii.

The right must be acquired by a fee simple owner against a fee simple owner

Kilgour v. Gaddes [1904] 1 KB 457 Simmons v. Dobson [1991] 1 WLR 720

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Use must be continuous

Common law prescriptions 

shorter period

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longer period

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`next before action'

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without interruption

Davies v. Du Paver [1953] 1 QB 184 Dance v. Thriplow (1992) 64 P&CR 1 Scope of prescriptive right White v. Richards (1993) 68 P&CR 105 Page | 16

Jelbert v Davis [1968] 1 WLR 589 Celsteel Ltd v Alton House Holdings [1985] 1 WLR 204

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REFORM Law Reform Committee, 14th Report on the Acquisition of Easements by Prescription, Cmnd. 3100 (1966) Law Commission current review: www.lawcom.gov.uk/easements.htm Law Commission C.P. No.186,Easements, Covenants and Profits a Prendre (2008) Law Commission Report (2011) http://www.justice.gov.uk/lawcommission/areas/easements.htm

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