Easements
Characteristics - Re Ellenborough Park
Dominant & Servient Tenament
Separation of dominant and servient tenament
Must accommodate the dominant tenament
Sufficiently proximate
Must not be a purely personal right
Hill V Tupper
Moody V Steggles
London and Blenheim Estates V Ladbroke Retail Parks Ltd (1992)
Platt V Crouch (2003)
Must not be a vague recreational use
Does not have to be needed
Polo Woods V Shelton - Agar (2009)
Capable of forming the subject matter of a grant
Must be a capable grantor
Must be a capable grantee
Rights must be sufficiently certain
Re Aldred (1610) right to a view
No positive obligations can be attributed to the servient owner
William V Old International V Arya (2009)
Cardwell V Walker (2003)
The right must not be excessive
Batchelor V Marlowe (2001)
Moncrieff V Jamieson (2007)
Wright V McAdam (1949)
Copeland V Greenhalf
Grigsby V Melville (1974)
Legal Easements
Created by statute
By prescription
Prescription Act 1832
Created by Deed
Registered Estate
Unregistered Estate
Registered as title
Not registered as title
Equitable
Legal
Not required to be registered (e.g. lease for less than 7 years
Legal
Legal
Equitable easements
For period less than the fee simple or leasehold (s1 LPA1925)
Made by written instrument under s2 1989 LP (MP) Act
Not made by written instrument under s2 1989 LP (MP) Act
License
Equitable easement
Effect of Easements
Registered Land
Legal Easement
Existing before LRA 2002
Binding as overriding interests under Sch 2
Creation of Easements
Express
Express grant
Where parties are already in separate ownership
Where the owner sells or leases the land to another - the potential dominant tenement
Express reservation
Implied creation
Necessity
Grant
Wong V Beaumont
Mangjang V Drammeh (1990)
Reservation
Re-Dodd - No necessity where it's merely inconvenient
Sweet V Sommer (2004)
Common intention - Same as necessity but there does not need to be necessary for use of the land
Stafford V Lee
Donovan V Rana (2014)
Rule in Wheeldon V Burrows
Rule can be expressly excluded
Millman V Ellis
Must be within the provisions of Re Ellenborough Park
the right must actually have been used prior to the sale
Alford V Hannaford
Must be in use by the owner - not third parties
Hillman V Rogers - used by agent of the owner was acceptable
Must be continuous and aparent and necessary for reasonable enjoyment
Coninuous and apparent
Millman V Ellis - lay by covered in tarmac
Wood V Waddington (2015) Does not mean continuous use - just regularly in an uninterrupted manner.
Necessary for reasonable enjoyment
Hillman V Rogers - should not be equated with necessity
s62 LPA 1925
Only applies to coveyance i.e. the transfer of legal estate. This means that it only creates legal easements since it will be implied to the transfer of a legal estate
Can be excluded - most of the time it is
Only rights capable of being easements can be impliedly created under s.62
There is no need to show that there is reasonable enjoyment, if there is prior diversity there is no need to show continuous and apparent use.
Prescription
Lie in Fee Simple only (not leases)
Long use must be against a fee simple owner of the servient tenement
Llewellyn V Lorey (2011)
Presumption if the owner was in possession at the commencement of the long use. If not it's possible to assert but difficult to substantiate.
Use must be as of right
Odey V Barber - permission was given therefore it was a license
London Tara Hotel Ltd V Kenington Close Hotel Ltd - the servient owner believed that a license was in effect but as it had expired he was deemed to be acquiescing in the use.
Use must be in the character of an easement - Re-Ellenborough Park
Use without secrecy
Lighterage Co V London Graving Dock Co - the use must be 'open' - that is of such character that an ordinary owner would have a reasonable opportunity of becoming aware.
Without force
Must be lawful