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Easements 5B and 6 - Coggle Diagram
Easements 5B and 6
prescription
easements can be acquired expressly or impliedly; however, they can also be acquired by prescription, which is through long use (grant or reservation - doesn't matter which one)
:star: how this happens -
- need two pieces of land owned by separate people
- the dominant owner must exercise a right (easement) over the serviant piece of land for long enough
- this period is roughly 20 years
- the law then presumes that the serviant owner MUST have granted an easement at some point in the past
in addition to this long user, there is an acquiescence by the serviant owner, which is a failure by the servient owner to stop the dominant owner exercising a right over their land. By not stopping this, the servient owner is giving way (acquiescing) to their right
acquisition by prescription
3 potential methods:
- common law prescription
- doctrine of lost modern grant
- under the Prescription Act 1832
at their core, all of these methods in acquiring an easement by prescription are based on at least 20 years of use (or more)
:!: all three types would give the dominant owner a legal easement, despite perhaps not having an official grant by deed
General rules for all 3 methods
- prescription = LEGAL EASEMENT
- prescription can only be claimed to benefit the freehold title (NOT leasehold)
- the dominant owner used servient land as of right - this means acting:
- without force (nec.vi)
- without secrecy (nec.clam)
- without permission (nec.precario)
- the way you exercise the easement must be continuous
continuous use
:!: dependant on the right that is being exercised (nature of rights etc) :!:
:red_flag: Hollins v Verney (1884) - 12 yearly intervals was too discontinuous and couldn't amount to an easement
requirements of as of right:
- without force (nec.vi)
dominant owner cannot use physical force to establish prescription - if the servient owner has acquiesed (objected), the dominant owner cannot just continue and claim prescriptive rights
:red_flag: Eaton v Swansea - waterworks (1851)
- without secrecy (nec.clam)
dominant owner cannot do something secretly because the servient owner cannot object to this as they wouldn't know of it
:red_flag: Liverpool Corp v Coghill (1918)
- without permission (nec.precario)
CRITICAL: if there is a sense that the servient owner might have given permission for somebody to do something, it's unlikely that they will be able to claim a prescriptive easement, but instead under s.62
:red_flag: Gardner v Hodgson's Kingston Brewery (1903) - payment of money between dominant and servient owner for the right: money is deemed to be a type of permission
common law: 'time immemorial' 1189
:star: this rule is based on a right to be exercised for 20 years, but if a right had been exercised for this time, then there was a presumption that the right must have been exercised since 1189 - the date when legal memory commences
- very easy to rebut the finding of an easement by showing that this was not the case; at some point either the dominant or servient land may have been owned by the same party , or not possible to exercise the right for this long (ie. cars on roads)
lost modern grant (based on a legal fiction)
for those people who were able to show that they had been exercising a right for 20 years, then at some point there must have been a deed that was granted that documented this right
- the fictional presumption is that that deed has been lost; the courts assume that there has been an express grant that has been made, but lost
- this is the way in which prescriptive easements are claimed on a day to day basis
:red_flag: Bryant v foot (1867)
A strong presumption; even if nobody can find any evidence for the legal grant having been made, the legal presumption cannot be rebutted
:red_flag: Tehidy minerals v Norman (1971)
Made clear that lost modern grant can apply to any period of 20 years (very useful)
Tehidy says 2 things:
- firstly, it says that 20 years is sufficient to give rise to presumption of a prescriptive right and it doesn't matter which period of 20 years this happened in (ie. even if you wee displaced or prevented from using the land during this time)
:red_flag: London Tara Hotel Ltd v Kensington Close Hotel (2011)
- servient owner should check every 18 years to ensure that if they have granted a license that that ownership of the dominant land has not changed. As a new owner can acquire a prescriptive right
- prescriptive right can be based on use by third party, where the third party's use benefits the dominant land
Prescription Act 1832
Described as the worst/badly drafted act in the statute book :!:
- sections 2, 3 and 4
section 4: "next before suit" - if you have to exercise an easement for 20 years, you have to exercise that next before some suit or action (ie. your 20 years of use have to be right next to when you put your application in for court) - immediate action
express grants
Those easements that you intend to grant; the easement (right of way) is contained in the sale transfer - the transfer deed
- the deed must be made in accordance with s.1 of the Law of Property (Miscellaneous Provisions) Act 1989
- its must ALSO be completed or perfected by the registration of title; the reason for this is under the Land Registration Act 2002
- s.27 of this act contains a long list of interests in land that have to be registered in order to be legal; one of those in s.27(2)(d) relates to easements and says that expressly granted legal easements must be registered
LRA 1925, s.70(1)(a)
before the 2002 act, an equitable easement COULD BE an overriding interest; interests that are created after the new act comes into force are no longer overriding interests and must be protected by a notice on title :!:
^^ 13th October 2003
implied easements and those created by prescription
:star: these are all legal easements and all overriding interests; some of them may be registered but, because they arise informally (implied into docs or because they arise through user), you won't often find these on title
:!: this is only provided that they fall within LRA 2002 schedule 3, para 3: after the easement has been acquired, you must ask whether it is protected and what actually protects its priority? It isn't on title, but it is classed as an overriding interest and its priority will be protected if it falls within the ambit of this schedule
Three Criteria: does the easement fall under at least one of these?
- the purchaser of the land must know of the easement
- the easement is obvious on a reasonably careful inspection of the land
- the easement been exercised within a period of 1 year before the disposition? (if it in use at the time of sale, then it obviously satisfies this point)
remedies
:star: claims are often Brough forward when someone interferes with an easement (ie. preventing the flow of light, blocking an access, stopping a right of way from being carries out)
- interference - the question is: how extensive does the interference by the servant owner have to be to give rise to a remedy?
- doesn't have to amount to total description of the easement; some trivial impact with the right can be tolerated
:red_flag: Celsteel v Alton House Holdings (2000)
- after the interference, are they still left with the reasonable use of their right?
:red_flag: B&Q plc v Liverpool and Lancashire Properties Ltd (2000)
:!?: can the right be substantially and practically exercised as conveniently after the interference?
this test is not focused on what the grantee is left with and whether or not this is reasonable, but whether their insistence on being able to continue with their whole right is reasonable
gates and locks
installing a gate will not necessarily amount to substantial interference with a right of way - this may change if there are multiple gates installed along the driveway; this would be substantial enough to interfere with your right of way up that pathway
:red_flag: Dawes v Adela Estates Ltd (1970)
:red_flag: Geoghegan v Henry (1922)
light
it is NOT enough to just show that light has been reduced; you must show that the reduction of light amounts to an actionable nuisance :!:
:red_flag: Carr-Saunders v Dick McNeil Associates Ltd (1986)
"all ordinary purposes for which the property may reasonably be expected to be used"
remedies for breach
- declaratory relief
- abatement
- injunction
- damages
:red_flag: Shelfer v City of London electric lighting company (1895)
Criteria formed to help determine whether damages can be awarded in the pace of an injunction or whether C should be entitled to exercise their strict legal rights and exercise their easement (injunction over damages)
- the judicial discretion to award damages should not be exercised to deprive C (the dominant owner) of their right to an injunction, except in exceptional circumstances
:arrow_up: Shelfer criteria
- injury to dominant owner's legal rights was small
- injury was capable of being estimated in money (damages more appropriate)
- injury could be adequately compensated by small money payment
- oppressive to D to grant injunction
:red_flag: Coventry v Lawrence (2015)
can an easement to sound be an easement?
types of damages
- damage suffered to property?
- loss due to inability to use land or exercise rights?
- consequential loss flowing from tort (if reasonably foreseeable?)
- stress/exemplary damages where D stands to make a profit?
termination/extinguishment of easements
- by express release:
:red_flag: Roe v Siddons (1888)
unity of seisin
- Permanently un-exercisable or abandoned:
:red_flag: Benn v Hardinge (1993)
- forgetting about an easement and not using it for ages (still exists)