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Easements (Essential characteristics - Re Ellenborough Park (Right claimed…

- - - - PA Swift
      - Hill v Tupper - held not to be an easement because benefited the business, not the land itself - though sometimes these are very closely linked
      - Moody v Steggles - hanging pub sign on servient land - court held was an easement - that building had always been used as a pub - inextricably linked and would benefit any owner
  - - - Estate in land - legal or equitable
      - Legal capacity - over 18 and of sound mind
    - - Bland v Mosely - right to view - not sufficiently precide
      - William Aldred's Case - right to privacy - not sufficiently precise
    - - E.g. Right of storage - Wright v Macadam - by analogy = right to park - London & Blenheim
      - New positive easements allowed, but no new negative easements - negative easements tend to have too much impact
        
        Phipps v Pears
        
        Hunter v Canary Wharf - use this example
  - - - Servient owners must not incur additional compulsory expense
        
        Regis Properies v Redman - easement to provide hot water not recognisable
        
        Jones v Pritchard - grant of easement ordinarily carries grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment - but grant to right over driveway cannot place servient owner under obligation to keep driveway in repair
        
        But: Rance v Elvin - interpreted as a right to allow water to pass through pipes, with dominant owner responsible for their share of the bill - right to uninterrupted passage of water, not supply of water
      - Must be exercisable as of right
        
        Green v Ashco Horticulturists - if need to repeatedly ask permission, can't claim as right
      - Right must not amount to exclusive possession e.g. parking cases - exclusive possession goes way beyond easement
        
        Test - arisess in 'exclusive right to park' cases
        
        London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd; Batchelor v Marlow - 'ouster' principle - is the servient owner left with any reasonable use of his land?
        
        Principle originally developed by Upjohn J in Copeland v Greenhalf
        
        Moncrieff v Jamieson - 'does the servient owner retain possession and control of the land?' - Lord Scott - said servient owners should be able to grant whatever they like, not about having reasonable use but possession and control - Scottish case so only persuasive - Batchelor is still binding precedent
        
        Kettel v Bloomfold Ltd - acknowledged that Moncrieff better and pushed them together - not very helpful
- - - - Reservation - land owner reserves a right for himself over land he has sold or let - strict construction because they are in the position to reserve exactly what they want
        
        St Edmundsbury & Ipswich Diocesan Board of Finance v Clark (No 2) - Looked at evidence of intent at time of reservation to decide if right of way allowed for vehicles - when land was sold the gate posts there were only four feet apart - therefore right of way only allowed on foot
        
        Cordell v Second Clanfield Properties Ltd
        
        Attwood v Bovis Home - doesn't work if nature of burden substantially changes e.g. builds flats - should reserve what you need and a little more
        
        Massey v Boulder - substantially different purpose - right of way only from and to two specific places
      - Grant - land owner creates a right in favour of a new owner/tenant of part of land, over his retained land
    - - Profits a prendre - rights to take something from land of another (not on syllabus)
      - Restrictive covenants - promises not to do something
      - Quasi-easements - potential easements - important for Wheeldon v Burrows - not an easement when own all of the land, but could be when separated - must be obviously used
  - - - Must be substantively registered if servient land is registered - s27 LRA 2002 - if servient land unregistered, legal interests bind the world
    - - S1 LPA 1025 - s1(3) - all interests in land which are not legal estates or interests take effect in equity only - won't be legal if fails on formalities, parties deliberately enter into contract to create legal easement in future, granted for uncertain period, or grantor has equitable estate
        
        Must generally comply with s2 LP(MP)A - in writing, all terms and signed by both parties - easements for uncertain terms need only comply with s53(1)(a) LPA - in writing
        
        Must be protected by s32 Notice if land is registered - otherwise purchaser takes free - s29 LRA
        
        If unregistered, protect by D(iii) Land Charge - otherwise purchaser takes free - s4(6) LCA 1972
- - - - Transfer
      - Lease
      - Contract
    - - Implied by necessity (grants and reservations)
        
        Test - can the land be used at all without the implied easement? - Manjang v Drammeh (1990) - court refused - claimant bought land next to river and claimed right of way over enighbouring land - said had alternative of sailing - needs to be an absolute necessity - right or way where completely landlocked
        
        Adealon v Merton Council (200&) - court refused - bought land between road and train station with intention of building service station - sold only other access and failed to get planning permission to cross road - hadn't reserved his right of way
        
        People have tried with rights of drainage etc. but always refsued because can still use land - only where can't access
      - Implied by common intention (grants and reservations) - must be intended by BOTH parties - hard to prove
        
        Pwllback Colliery v Woodman (1915)
        
        Wong v Beaumont Property Trust (1965) - need very specific common intention at date of grant and particular easement to be essential for particular purpose
        
        Court agreed to imply right into lease document - basement leased to tenant to use as a restaurant, with added covenant agreeing to comply with all health regulations etc. - both sold on and second owner of servient land complained about food smell- health inspectors said needed ventilator and was a breach of covenant not to have one - Wong claimed implied right to use upstairs ventilator - allowed because couldn't comply with original intention of restaurant otherwise
        
        Stafford v Lee (1992) - should really have argued necessity here - court allowed because remaining dominant land developed residentially according to common intention - couldn't actually do without right of way
      - 3.Implied under Wheeldon v Burrows (grants only)
        
        On sale or lease of part of land, grantee will receive all quasi-easements which are...
        
        Continuous and apparent AND
        
        Reasonably regular use and something showing e.g. path for right of way or manhole for drainage
        
        Necessary to the reasonable enjoyment of the land AND
        
        Convenient use/comfortable enjoyment - doesn't have to be absolutely essential
        
        Wheeler v Saunders (1995) - sold houses on property but didn't grant right of way across main driveway - each buyer claimed even though all had alternative routes - quasi-easement and was apparent, but equally convenient to use alternative so not allowed
        
        Millman v Ellis (1996) - same as Wheeler but not equally convenient - found necessary for enhanced enjoyment - was in use at time of partition
        
        Used at the time of the grant by the owners of the whole for the benefit of the part sold/leased
        
        Works to imply easements where originally no diversity of occupants - part sold will get all rights original sole owner enjoyed - only works for new owner claiming easements not landlords wanting something they hadn't retained originally
      - Implied under s.62 LPA 1925 (grants only)
        
        A conveyance includes all 'easements, rights and advantages... appertaining to or enjoyed with the land' - transfer and lease by DEED
        
        Two functions
        
        Ordinary operation of s62 - transfers the benefit of existing easements on transfer of land
        
        'Unintended' operation - method of creating an easement - converts all existing benefits into legal easements - doesn't pass as permission
        
        Landowner owns and occupies one plot, and other plot already leased to tenant - during lease allowed to use landowner's plot internally - when new lease of second plot granted, informal permission becomes legal easement
        
        Wright v McAdam (1949) - coalshed which landlord tried to charge new tenant to use for storage - found she had an easement - must be revoked or excluded from new lease
        
        Limitations
        
        Must be transfer/lease by deed
        
        Casual intermittent permission is not enought - Green v Ashco Horticulturalist Ltd (1966)
        
        Diversity of occupation not required?
        
        Sovmots Invest's v Secretary of State for Environment (1979) - only works when there is existing permission - different from Wheeldon
        
        P & S Platt Limited v Crouch (2004) - don't need two occupants before new lease or transfer - can be done first time
        
        Wood v Waddington (2015) - Platt confirmed in Wood - essentially makes Wheeldon defunct except where there is no deed
        
        Must be 'continuous and apparent'
        
        Only applies to grants, not reservations
        
        Can be excluded
      - Acquired by prescription (grants only) - won't be examined on this