Please enable JavaScript.
Coggle requires JavaScript to display documents.
easements 4 and 5 - Coggle Diagram
easements 4 and 5
Acquisition of easements
competent grantor and grantee? "nemo dat quod non habit" = no one can give what he does not have
This means that, if you are a freehold owner, you can grant a right in relation to a freehold title, but if only a leaseholder, you can only grant an easement in relation to an leasehold title
Legal easements
- express grant/reservation by deed
- implied grant/reservation
- prescription
equitable easements - not really covered in detail
- arise through failed deed in a contract (has to be protected on title, at the registry under s29 LRA 2002 - Charges register, also set out in s32 LRA 2002)
- proprietary estoppel
express grants
LPA 1925, s.1(2)(a): '...for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute.'
:!: This states that easements are capable of existing for a finite period of time (like a lease) or forever, akin to a freehold
so, if you have an expressly granted easement, this will be made and documented in the deed (the sale transfer), and then registered at the land registry (s.27 2002 act). (if the formalities are fulfilled).
:!: In order for an easement to be legal, it has to be granted out of a legal estate (cannot be someone who holds an equitable title, such as an equitable lease)
Express Reservations
:red_flag: St Edmondsbury and Ipswich BoF v Clark (1975)
CONTRA PROFERENTUM RULE
- if you own the land to start off with, you are meant to be the one in the position of more bargaining power, and will know which rights you should be reserving in relation to the property
- therefore, the courts have very little sympathy if the matter goes to court over details such an on foot/vehicle
- Contra proferentum: the courts will contour the wording against the party that drafted it (ie. the one who should have reserved the rights)
implied easements
What are we implying and where are we implying it into?
An easement hasn't actually been granted in words, but there is an implication that it has or should be ('read into' a deed of grant)
- Critical: because we are implying words into a deed that goes to explaining why these implied easements are actually legal easements; these words were missing from this agreement, and in effect we are reading these words into the document at a later date even though they are not physically in there
- this can be done by Statute or Case law
Implied grant:
- necessity
- common intention
- wheel down v burrows :red_flag:
- s.62 LPA 1925
Implied reservation:
- necessity
- common intention
:star: implied grants and reservations both share these methods of being able to claim an easement
implied reservation
different ways easements can be acquired (law here is very narrow:
- through necessity
- by common intention
necessity
:red_flag: Clark v Cogge (1607)
"if a man hath four closes (parcels of land) lying together, and sells three of them, reserving the middle close, and hath not any way thereto but through one of those which he sold, although he reserved not any way, yet he shall have it, as reserved unto him by the law"
:!: you can only claim necessity if access to the property is IMPOSSIBLE not just IMPRACTICAL
:red_flag: Sweet v Sommer (2005) - you don't have to demolish an existing building on your premises in order to gain access
reservation by common intention
:red_flag: Peckham v Ellison (2000); decision subsequently criticised so beware :!:
implied grant
because these are grants, the courts are generally more lenient with their decisions and so interpret more widely
4 methods of claiming an implied easement here:
- necessity
- common intention
- under the rule in Wheeldon v Burrows
- Under LPA 1925, s.62
necessity
:red_flag: Nickerson v Barraclough (1981)
the question here was: does an express intention in the conveyance itself not to create an easement prevent the implication of an easement of necessity?
- CoA said that easements of necessity were still based on the intentions of the parties; the transfer deed made it clear that there were to be no deed until the roads had been built and therefore there could not be an easement of necessity implied here :!:
:red_flag: Manjang v Drammeh (1991)
land not landlocked and so no implication for an easement of necessity was necessary: not impossible just impractical
2. common intention
:red_flag: Wong v Beaumont Properties (1964)
Denning: implied easement because, in effect, the tenant had covenanted (promised) in the lease to (1) keep the property open as a restaurant, and (2) to comply with health and safety regulations to emit smells and odurs, and the tenant couldn't comply with either keeping open the restaurant or with ventilating the property without that easement (AKA necessity through implication)
3. Under the rule in :red_flag: Wheeldon v Burrows (1879)
Quasi easemements = ALMOST easements; rights that have the potential to be easements (can't be over your own land, though - Re Ellenborough)
Wheeldon :arrow_down:
"there will pass to the grantee all those continuous and apparent easements (quasi easements) or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been, and are at the time of the grant, used by the grantor for the benefit of the part granted"
rules taken from W v B:
- is the right continuous and apparent
- is the right necessary to the reasonable enjoyment of the land sold
- is the right in use at the time of the sale
- continuous and apparent:
:red_flag: Ward v Kirkland (1967)
- there must be a physical feature that is nor transitory nor intermittent
:red_flag: Suffield v brown (1864)
- something that hangs over the land, such as a Bowsprit off the end of a boat, is not something which is continuous and apparent because it is temporary
- necessary to the reasonable enjoyment of the land sold:
:red_flag: Wheeler v JJ Saunders (1996)
- second access wasn't necessary for the reasonable enjoyment of the land
:red_flag: Borman v Griffiths (1930)
- in use at time of the sale:
- not literal: the right simply needs to have been exercised in the recent past
:red_flag: Costagliola v English (1969)
the whole point of Wheeldon v Burrows, the premise of it, is underpinned by the idea of not derogating from grant: in effect, this gives the person buying the land the rights that SHOULD have been granted in the conveyance, and it is those rights that are apparent and can be seen etc
MENTION THIS WHEN DISCUSSING IN PQ ANSWERS
implied reservation under Wheeldon v Burrows?
:!: no possibility of an implied reservation under the rule of Wheeldon; this is only for the benefit for someone buying a piece of land due to it being based on the principle to not derogate a piece of land
4. Under LPA 1925, s.62
final way of claiming the grant of an implied easement
- could be some overlap with the W v B rule, but usually this section applies where that rule doesn't
- intention of this section is to say that every conveyance of land basically includes with it all easements that might benefit it (ie. drains, ways, passages, lights, liberties, privileges, easements, rights etc.)
:!: this means that: if you sell a piece of land, this is a statutory deeming provision that automatically includes with it every easement that may belong or have a reputation of belonging to that piece of land
:red_flag: Wright v Macadam (1949)
Easements tend to come about in 2 ways:
- Wright v Macadam - if a tenant has (additional to rights in a lease) additional benefits then when the lease is renewed, then s.62 may transform these into easements
- International Tea Stores v Hobbs - the seller of the land sells part of the land that has already been in separate occupation
:!: very wide application here; tends to scare lawyers:!:
LPA 1925, s.62(4)
under this subsection, this particular rule only applies to the extent that it hasn't been applied in the conveyance;
so if the parties have agreed between themselves that this statutory rule isn't to have any effect (like in :red_flag: Platt v crouch) they are reducing their chance of being negligent in law because of the overly wide application of s.62
Wheeldon v Burrows:
- rights enjoyed by grantor
- no diversity of occupation
- no conveyance needed
- must be continuous and apparent
s.62 LPA 1925:
- rights already enjoyed by grantee
- diversity of occupation necessary
- rights become easements on conveyance
- need not be continuous and apparent