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Easements (Disqualifying factors (Requires expenditure by servient…
Easements
Disqualifying factors
Requires expenditure by servient tenement owner (
Regis Property Co Ltd v Redman
)
Exception for fencing
Easement may place dominant owner in quasi-contract to reimburse (
Rance v Elvin
)
No obligation to maintain or repair but obligation to allow access to effect necessary repairs
Exercise amounts to giving exclusive possession of servient tenement (
Grigsby v Melville
)
Parking in one of several spaces does not fall fol of this as long as doesn't interfere with servient owners use of land (
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
)
c.f.
Batchelor v Marlow
(n.b. not overruled by
Moncrieff v Jamieson
)
Must not deprive servient owner of possession and control (
Moncrieff v Jamieson
)
Requires fresh permission from servient owner (
Green v Ashco Horticultural Ltd
)
Has the right been acquired
Express
Grant
Construed widely (
Shaw v Grouby
)
Reservation
Construed strictly against dominant owner (
Cordell v Second Clanfield Properties Ltd
)
Implied
Necessity
Only if strictly required (
Manjang v Drammeh; Pryce v McGuinness
)
Only applied to rights of way
Common intention of parties
When land sold/leased for a purpose that is impossible without the easement sought
In case of reservation must show common intention that specific easement exist despite lack of express acquisition
Wheeldon v Burrows
(only grant)
Quasi-easements become easements upon division of ownership and occupation of land subject to criteria (including contract for sale/lease (
Borman v Griffith
)
Right is continuous and apparent
Sense of permanence
Right was discoverable/detectable from careful inspection of the land by a person ordinarily conversant with the subject (
Pyer v Carter
)
Rule of common sense, honesty and decency (
Sovmots Investments Ltd v SoS for the Environment
)
Necessary to reasonable enjoyment of dominant land (
Wheeler v JJ Saunders Ltd
)
Not as strict a requirement as necessity or common intention
In use at date of transfer
Exercised in recent past and expected to be exercised again in near future
By common owner (
Kent v Kavanagh
)
s. 62 LPA 1925 (only grant)
Can only operate where the has been a deed
Wright v Macadam
- where land has been divided before informal permission is given. Permission becomes an easement when the leased land is re-let/sold
P & S Platt Ltd v Crouch
- Where land is divided for very first time by lease/sale, if right is continuous and apparent
Continuous and apparent = sufficient signs of continued use
Prescription
Common Law
If it has been enjoyed since commencement of legal memory (1189)
20 years will suffice
Unless can show that right did not exist at some point since 1189
Lost modern grant (
Orme v Lyons
)
If continuous user for at least 20 years can be shown then assumed to be lost deed of grant
Court will not admit evidence to the contrary
Prescription Act 1832
Easement of light
Only 20 year period necessary
Do not need to be of right
defeated by written consent
Amount of light entitled is such as is necessary for ordinary use and enjoyment (
Saunders v Dick McNeil Associates Ltd
)
Dependant on type of land e.g. greenhouse vs warehouse (
Allen v Greenwood
)
Other easements
Claim based on 20 year period defeated if
user not of right
oral consent sufficient
Interruption of a year or more
40 year period defeated if
user not of right
Consent must be written or by deed unless oral consent repeated
Interruption
Cannot prescribe against landlord or tenant of common landlord except rights of light under PA 1832
Right used neither by force, by stealth nor by prescription
Is right capable of being an easement?
Re Ellenborough Park
criteria
Must be a dominant and servient tenement
Two identifiable pieces of land (
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
)
Cannot exist in gross (
Hawkins v Rutter
)
Right must accommodate dominant tenement
Direct beneficial impact on dominant tenement
Not personal benefit
Commercial use of land not precluded from being an easement (
Moody v Steggles
)
Two tenements must be sufficiently proximate (
Bailey v Stephens
)
Recreational easements confirmed (
Regency Villas Title Ltd v Diamond Retreats (Europe) Ltd
)
Diversity of ownership
Right must lie in grant
Capable grantor and grantee
Separate legal personalities (ss. 1(6) & 22 LPA 1925)
Capable of reasonably exact description
Nature and extent of right
Should be within general nature of the rights traditionally recognised as easements
Rights of way (
Borman v Griffith
)
Rights of light (
Colls v Home & Colonial Stores Ltd
)
Rights to water in a defined channel (
Race v Ward
)
Rights to air in a defined channel (
Wong v Beaumont Property Trust Ltd
)
Rights to support (
Dalton v Angus & Co
)
Rights of drainage through a defined channel and other rights of 'pipeline' e.g. gas, electricity etc. (
Atwood v Bovis Homes Ltd
)
Rights to pollute a river (
Scott-Whitehead v National Coal Board
)
Rights to cause a nuisance (
Sturges v Bridgman
)
Rights to use facilities (
Regency Villas Title Ltd v Diamond Retreats (Europe) Ltd
)
Not an exhaustive list (
Dyce v Lady James Hay
)
Reluctant to recognise new negative easements (
Phipps v Pears; Hunter v Canary Wharf Ltd
)
Must comply with criteria