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EASEMENTS - Coggle Diagram
EASEMENTS
Implied grant/ reservation
- Read words that should have been there when writing the document
- Law commission states that this area of law is ‘neither straightforward nor clear’
- Can claim for necessity -
- common intentions for parties
reservation
- Clark v Cogge [1607] - if given away a piece of land but needs to use that land to access his own land then it is a right ‘reserved unto him by the law’ even though he had sold it
- Necessity must be impossible not just impractical
- Sweet v Sommer [2005] - implied grant – necessity for access was granted to prevent demolishing existing building
GRANT
- Nickerson v Barraclough [1981] - no easements allowed until the roads were built – roads were never built – but could not be granted
- Manjang v Drammeh [1991] - was sufficient access by water so no easement granted as not necessity
- Wong v Beaumont properties [1964] - landlord allowed tenant to use basement as restaurant – granted that they were allowed air-vents – original lease agreed that they would control health and safety which could not be fulfilled without this easement
Reservation
- Peckham v Ellison [2000] - bin storage – council forgot to reserve the tenants a right to store the bins in ally – because the bins had been there for so long the right was reserved due to the common intention of parties
Wheeldon v Burrows [1879] - non- derogation from grant
- rights to light was sold with the land -
if the right is continuous and apparent
- Ward v Kirkland [1967] - is there a physical feature to indicate a right
- Suffield v Brown [1864] - cannot be there temporarily e.g. car
Necessary to the reasonable enjoyment of the land sold
- Does the land benefit
- Wheeler v JJ Saunders [1996] - second access was not necessary
- Borman v Griffiths [1930] - allowed to access front and back – benefit and necessary for the business
In use at time of the sale
- Costagliola v English [1969] - just needs to be recently
- Rights enjoyed by grantor
- No diversity of occupation
- No conveyance needed
- Must be continuous and apparent
S62 LPA 1925
- Applies where Wheeldon v Burrows doesn’t - Wording is so wide – unclear
- Wright v Macadam [1949] - when lease is renewed then additional benefits may turn into easements
- Platt v Couch [2003] - if you do not exclude LPA 1925 s62(4) you are at risk of being negligent
- Rights already enjoyed by grantee
- Diversity of occupation necessary
- Rights become easements on conveyance
- Need not be continuous and apparent
PRESCRIPTION
- Long user (20+) + acquiescence by the servient owner (failure by the servient owner to stop the dominant exercising a right over their land)
- Prescription will give you a legal easement
- For benefit of freehold only
Wheeldon v Burrows – she stopped the light from entering the land to stop the right being acquired
Doctrine of lost modern grant
- Have to show the right is exercised for 20 years
- Court presumes that there has been an express grant made and then the deed has been lost
- Bryant v Foot [1867] - a strong presumption
- Tehidy minerals v Norman [1971] - can be applied to any period of 20 years so is very useful ‘the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made’
- Dalton v Angus [1881] - right to lateral support – assumption that the deed of grant had been lost
- London tara hotel v Kensington hotel [2011] -
Common law prescription
- ‘time immemorial’ 1189 – to have to show it was around since 1189 – legal fiction that if it is longer than 20 years it states the right has been since 1189 – easy to rebut the presumption that the easement began in 1189 as easy to show that the land had fallen into common ownership over time (could not be an easement) or could not have been exercised – this rule is not used
Under the prescription Act 1832
- Not used in practice
- S2 = 20 years
- S3 = right to light
- S4 = before mentioned periods to be deemed those next before suits – 20 years of use needs to be right after your application to court – contradicts Tehidy minerals v Norman [1971] as if you do not renew it at court within a year of interrupting then you lose the right to an easement under prescription
Continuous use
- Depends on the right being exercised e.g. right to light agriculture
- Hollins v Verney [1884] - 12 years intervals so no easement but can be months/ years just not too long
Dominant owner used servient land as of right:
- Without force
- Eaton v Swansea waterworks [1851] - dominant owner fined as was not 20 years and interfered even though servient resisted
- Without secrecy
- Liverpool v Coghill [1918] - servient did not have an opportunity to object as did not know – no easement
- Without permission
- If the servient gives permission is not able to claim under a prescription easement – would look under s62 instead
Easements are stated in LPA 1925, s1(2)(a) - ‘for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute’
Must be granted out of a legal state – not equitable – unless lawyers do it wrong and make it equitable - no writing = license
IDENTIFYING
- Re Ellenborough Park [1955] - 4-part test
- Owner of the crescent properties had a right to use the park for pleasure
- Distance between are 100 yards to the park
- To get compensation from the war – needed to show proprietary rights - these characteristics:
There must be a dominant tenement, and a servient tenement London & Blenheim states [1992]
- Co-op sold land to them, They wanted rights to park on their land when they bought the rest of their land, easement can’t be granted if the dominant land is not identified
Woodman [1915]
- Cannot identify the servient – could not say where the dust would fall
The right must accommodate the dominant land
- They have to link – needs to be in connection with a piece of land - or else will be a personal right
- Must also benefit
- Can it benefit a business
- Hill v Tupper [1863] - right to river
- Moody [1879] - pub sign easement
- Contrasts – Clapman [1938] - no necessary connection to the sign
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The right must be capable of forming the subject matter of grant
- McClean [1996] - ‘obscure and unhelpful’
- Must not be too wide and vague
- Woodman [1915]
- Right to wander at will = not an easement
- Right to an attractive view = not an easement – Campbell [1911]
- Right to the flow of air to a windmill = not an easement Webb [1861] - not specific enough as it would be claiming all the air
Must not deprive servient owner of possession
- Law com 2008
- Copeland [1952] - the servient owner could not use the land as the cars were parked across all of it = not allowed - ‘it was virtually a claim to possession of the servient tenement to the exclusion of the owner’
- Wright v McAdam [1949] - could amount to an easement – right to store coal in the shed – is it not too possessory? - Batchelor [2001] - parking was too possessory so was not an easement
- Moncrieff [2007] - rejection of ‘reasonable use’ test - ‘substitute for a test which asks whether the servient owner retains possession and control of the servient land’ - Lord Scott – Scottish cases
- Regency Villas [2018] - ouster (too possessory?), recreational rights - time share and use of golf course - society has changed and exercise is now regarded as part of a daily routine, it is not a mere recreation – also improves the market for the time-shares economically
Not a mere right of recreation or amusement
- Mounsey [1865] - benefitted the multiple people riding the horse – did not benefit the possessory land – cannot have an easement for leisure
- ‘must be a right of utility and benefit’
No new negative easements
- Hunter v Canary Wharf [1997] - TV reception was not accepted as an easement
Not involving expenditure
- Financial burden goes beyond essence of an easement
- Duke of Westminster [1985] - cannot require servient owners to pay for the drainage unblocking
- Jones v Pritchard [1995] - servient owner was not required to pay to fix the chimney but the dominant owner could do the work themselves
Quasi easements
- Registration and priority
Equitable interests before the 2002 act can be overriding interests due to LRA 1925 s70(1)(a) – but made after cannot be
- 13th October 2003 the 2002 act came into force - They are overriding interests if they fall within the LRA 2002 sch3 para 3 (7 mins in lecture 6) - one of these 3 things
= Purchaser needs to know of the easement
= Easement has to be obvious on a reasonable careful inspection of the land
= The easement has been exercised with the period of 1 year before disposition
Celsteel v Alton house [2000]
- B&Q v Liverpool [2000] - can the right be substantially and practically exercised as conveniently after the interference as before? - was it reasonable to insist of using their whole right? Not based on what they are left with
- Dawes v Adela estates [1970] - no interference as was given a key to an outer door
- Geoghegan v Henry [1922] - lock on door prevented deliveries so did amount to sufficient interference
- Carr-Saunders v Dick [1986] - right to light ‘all ordinary purposes for which the property may reasonably be expected to be used’ - circumstances for the light – is the lack of light a nuisance
Abatement = a right to enter onto a servient land in certain circumstances – a remedy of putting right the interference
Shelfer v London electric [1895] - injury to rights was small, capable of being estimated in money, could be adequately compensated by small money payment and would it be oppressive for the defendant to grant injunction
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Benn v Hardinge [1993] - right had not been exercised for 175 years – court says the right still existed
Types of damages:
- Damage to property - Loss due to inability to use land or exercise rights
- Consequential loss flowing from tort (if reasonably foreseeable)
- Stress/ where defendant stands to make a profit ad servient interferes
= right of a landowner to enjoy limited use of the land of another landowner
- An easement is a right annexed (fixed) to land of different ownership in a particular manner
- Or to prevent the owner of the land from utilising his land in a particular manner – Halsbury's Laws 4th ed
Incorporeal hereditaments = you cannot touch – right, privilege, benefit
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POSITIVES:
- Allows you to have a right over someone else's land
- Permits the owner of the dominant land to do something on the servient land
- e.g path
NEGATIVES:
- limits others from doing something on the servient land e.g building to block light
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Can be express grant/ reservation by deed
- St Edmundsbury v Clark [1975] - contra proferentum - is a right of way on foot give a right of way for vehicles – no
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