Land 3 Easements

Easement

A proprietary right to use land which belongs to somebody else

Dominant Tenement

Lands that benefits from the easement

Servient Tenament

Land that the easement burdens

Equitable Easements LPA 1925 s1(3)

If an easement is not granted for the equivalent of a freehold or leasehold estate, it can only be equitable

Positive Easements

Allow the holder to use the servient land of another in a particular way

Negative Easements

Prevent the servient landowner from doing something on their land by giving the dominant landowner the right to something

The only recognised negative easements are

Right to Light (must be a defined aperture, Right to Air and Right of Support (e.g. a dividing wall)

Quasi-Easements

Where all land is owned by one party, they may become easements if the land is divided

Licence

Differs from an easement as it is a personal right and so cannot be enforced against a third party

Grant

Where a landowner sells or leases part of their land and gives an easement over the land which they have retained

Reservation

Where a landowner sells or leases part of their land and retains a right over that land, these are very strictly construed

Cordell v Second Clanfield Properties Ltd

A reservation that states it required a 12 feet wide right of way was not allowed to extend to 28 feet due to the court’s strict construel

Prescription

Easements may arise by prescription of at least 20 years without express grants or reservation

Basic Criteria for Prescription

Continuous Use (reasonably regular use) as a right (without force, secrecy, or permission)

Three types of Prescription

Common law, under the doctrine of Lost Modern Grant or the Prescription Act 1832

Mill v Silver

Reasonably regular use for 60 years without force, secrecy or permission allowed for a easement by prescription

Winterburn v Bennett

Claim for prescription for parking easement was rejected due to signs stating it was for private use only, therefore easement was used by force

Capability Rules

Four tests to see whether a right is an easement or a personal right

The Four Tests for an Easement

Does the right comply with the test for duration? Does the right fulfil the requirements set out in Ellenborough Park? Is the right being prevented by a disqualifying factor? Has the easement been acquired either expressly, impliedly, or by prescription?

Does the right comply with the test for duration?

Right must fall within definition within LPA 1925, s1(2)(a)

The Ellenborough Park Requirements

1. There must be a dominant and servient tenement
2. The right must accommodate the dominant tenement
3. There must be diversity of ownership
4. The right must “lie in grant”

Is the right being prevented by a disqualifying factor?

Additional compulsory expenditure by the servient owner/ use which amounts to exclusive possession/ permission

London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (Ellenborough)

In order for there to be a dominant and servient tenement, there must be two identifiable pieces of land

Hawkins v Rutter (Ellenborough)

An easement cannot exist “in gross”, independent of the land as this is a personal right or licence

The right must accommodate the dominant tenement (Ellenborough)

Does the right benefit any owner of the land? Is it ceased to be of use once the dominant owner has parted with the land? Does the right make the dominant land a better of more convenient property? Does the right add value or amenity to the dominant land? Is the land sufficiently proximate?

P&A Swift Investments v Combined English Stores Group plc (Ellenborough)

In order to accommodate the dominant tenement, the right must have some direct beneficia impact on the dominant tenement

Hill v Tupper (Ellenborough)

A right to put boats on an adjoining canal did not accommodate the dominant tenement as it did not benefit the land itself, just the business upon it

Moody v Steggles (Ellenborough)

A sign that benefitted a long-established business was held to be an easement as it had become the normal use of the land itself

Pugh v Savage (Ellenborough)

Land will be sufficiently proximate even if not adjoining provided they are still close enough for the dominant land to derive a benefit

There must be diversity of ownership (Ellenborough)

The dominant and servient land must be owned by different people

Roe v Siddons (Ellenborough)

It is not possible for an owner to claim an easement over their own land

The Right must lie “in grant” (Ellenborough)

The right must be granted by a capable grantor to a capable grantee; capable of reasonably exact description; and judicially recognised

Capable Grantor/ Grantee (Ellenborough)

Grantor must have the legal right to do so and be over 18 with sound mind/ grantee must be capable ie not a interchangeable group

William Aldred’s Case (Ellenborough)

A right to scenic view was not capable of description and so the easement was rejected

Judicially recognised (Ellenborough)

Right of way, of drainage and other rights through pipelines, of support of usage of sporting and leisure facilities, of usage for recreational purposes

Borman v Griffith (Ellenborough)

Case for right of way

Atwood v Bovis Homes (Ellenborough)

Case for right of draining and other rights through pipelines

Dalton v Angus & Co (Ellenborough)

Case for right of support

Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd (Ellenborough)

Case for usage of sporting and leisure facilities

Dyce v Lady James Hay (Ellenborough)

The list if judicially recognised rights is not exhaustive, new ones can be added

Phipps v Pears (Ellenborough)

A new negative easement may not be added to the list of those judicially recognisable

Batchelor v Marlow (Disqualifying Factors)

Ouster Principle analysis will apply the reasonable use test to see if there is exclusive possession, in this case there was exclusive possession as Batchelor had no reasonable use

Moncrieff v Jamieson (Disqualifying Factors)

Possession and control analysis is more generous towards the person claiming the easement

Kettel v Blomford Ltd (Disqualifying Factors)

The reasonable use test is binding law and should be used

Regis Property Co Ltd v Redman (Disqualifying Factors)

A right to supply hot water was not held to be an easement as it would force the servient to spend money

Rance v Elvin (Disqualifying Factors)

Court upheld an easement despite the added expenditure on the servient landowner as it was impossible to avoid and the dominant owner paid him back

Green v Ashco (Disqualifying Factors)

If a dominant landowner must ask permission each time, there is no easement

Implied Acquisition: Necessity

An easement will be implied by necessity where it can be shown that its existence is essential to make any use of the dominant tenement

Union Lighterage Company v London Graving Dock Company

“An easement of necessity is an easement without which the **property cannot be used at all,** and not merely necessary to the reasonable enjoyment of the property”

Manjang v Drammeh (Necessity)

If there is an alternative access route, even it is inconvenient or difficult, no easement will be implied by necessity

Pryce v McGuinnes (Necessity)

Easements will only be implied by necessity in the cases of landlocked land

Adealon International Property Ltd v Merton BC (Necessity)

Where the seller sold land forming part of its property to the buyer without granting a right of way, no easement was acquired by necessity over the Servient land as it was possible that a third party could grant a right of way over their neighbouring land to the buyer

Sweet v Sommer (Necessity)

A right of way in a vehicle was implied by necessity, even though a right of way on foot over the servient land already existed

Implied Acquisition: Common Intention

An easement will be implied by common intention where land has been sold or leased to another for a particular purpose, and that purpose cannot be fulfilled without the easement sought. 

Pwllbach Colliery Co Ltd v Woodman (Common Intention)

A general intention as to how the property should be used is not enough. The parties must intend for the property to be used in some definite and particular manner

Wong v Beaumont Property Trust Ltd  (Common Intention)

The dominant land must be sold or leased for a specific purpose, the purpose must be known to both parties, the easement claimed must be essential to achieve the common purpose

Donovan v Rana (Common Intention)

The plot had been sold with the benefit of planning permission for a single dwelling, which was enough to show common intention

Yeung v Patel (Common Intention)

The Court of Appeal refused to extend an express reservation because the claimant landlord had had two opportunities to reserve this

Implied Acquisition: Wheeldon v Burrows

New owner or tenant will impliedly acquire as easement all those rights which A had previously exercised over the land it retains for the benefit of the land

Wheeldon v Burrows: Requirements

Quasi-easement must have been continuous and apparent, must be necessary for the reasonable enjoyment of the dominant land and must be in use by the common owner at the date of the transfer or the lease in the dominant land

Wheeler v JJ Saunders (Wheeldon v Burrows)

The easement was not necessary for the reasonable enjoyment of the farmhouse, as the other access was **equally** convenient

Implied Acquisition: the LPA 1925, s62

a conveyance of land includes all easement rights and advantages enjoyed with that land

Wright v Macadam (LPA 1925, s62)

Implied an easement where under the previous lease, Mrs Wright had been able to store coal in Mr Macadam’s shed

The Upgrade Effect: LPA 1925, s62

A brand-new easement can be implied if: there is prior diversity of occupation, there is an informal permission or licence and there has been a conveyance of the dominant tenement

P&S Platt v Crouch (LPA 1925, s62)

The requirement for prior diversity of occupation (quasi-easement) is not necessary where the right is continuous and apparent

Remedies

Prohibitory/ Mandatory Injunction and Damages