Please enable JavaScript.
Coggle requires JavaScript to display documents.
Easements and Profit a Prendre (Basics of Easements (Basic Problem…
Easements and Profit a Prendre
Basics of Easements
Positive easements are rights granted to use someone else's land in a particular way
Negative easements are granted to stop someone from using their land in a particular way
An easement must be annexed or attached to another piece of land owned by the receiver of the easement
easements are non-possessory in nature
Basic Problem question sturcture
Does the claimed right, satisfy the essential characteristics of an easement?
Has an easement been acquired?
Is it a legal or an equitable easement?
Will it bind a successor?
Basics of Profits a prendre
Right to take something from someone else's land
The thing on the other land has to be something naturally occuring
Common examples include the removal of falling timber or the grazing and pasture of animals
Subject matter of the agreement must be something that is capable of being owned
Profits may exist in gross
No requirement for the land to be adjoining
Can be exhaustive if all the resources are taken from the land
Defining Characteristics of an easement
Essential characteristics set out in RE Ellenborough Park [1956]
There must be a dominant and a servient tenement
An easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefits
The Dominant and servient tenement must be different people
The right claimed must be capable of forming the subject matter of a grant
Must be a DT and an ST
Easements cannot exist in gross, and DT cannot create an easement not connected with the use or enjoyment of his land: Ackroyd v Smith (1850)
Must be able to identify the DT and the ST
At the date of the easement, the grantor must own an interest in ST and grantee own an interest in DT
There is no rule that ST and DT have to be directly next to each other, but they must be close enough to confer the benefit onto the DT - Bailey v Stephens (1862)
Wall v Collins [2007]: An easement can attach itself to the land itself, rather than an estate in the land
Raised questions as to whether a leaseholder can enjoy the same easement rights as the freehold owner
Easement must accommodate the DT
Must confer benefit onto the DT and not the individual, so a personal easement cannot exist
Hill v Tupper (1863) concluded that an easement must not confer purely personal or commercial advantages
But Moody v Steggles (1879) stated that an element of commercial benefit does not disqualify a right as an easement
DT and ST must be owned by different parties
May have the same freehold owner but different leasehold owners, which would suffice
Must be capable of forming the subject matter of a grant
Must be a type of grant that is capable of being made through a deed, even if it wasn't
Five sub-criteria:
Right must be withing general nature of rights traditionally recognised as easements
The list of easements is not closed, but courts are wary about accepting new kinds of rights as easements
Range of easements can include:
Right of way: Borman v Griffith [1930]
Advertise Business: Moody v Steggles (1879)
Generate excessive noise: Sturges v Bridgman (1879)
Park a Car: Moncrieff v Jamieson [2007]
Only 4 types of negative easement can be created, and the list is closed
Right to support of buildings from land
Right to receive light through defined apertures
Right to receive air through defined apertures
Right to receive flow of water through artificial stream
Right must not impose positive burden on ST owner
Must not demand expenditure or onerous actions
Moncreiff v Jamieson [2007]: No duty on ST owner to maintain the right of way
Right must be sufficiently definite
Will not accept uncertain terms including: right to a good view, right to indefinite privacy and good TV reception
Will accept well-defined terms including access to light and air through defined apertures in a building
Must be a capable grantor and a capable grantee
Grantor must be entitled to proprietary interest in the ST, except in cases of easements by estoppel
There will be no valid easement where:
Grantee is legally incompetent to receive grant
There is a fluctuating body of persons
Right must not deprive ST owner of all beneficial proprietorship
Must not involve exclusive possession of ST: Reilly v Booth (1890)
Must not exclude grantor from possession
Easement must not be inconsistent with the continued beneficial ownership of the ST by the owner: Moncrieff v Jamieson [2007]
Cases over confined spaces are problematic
Wright v Macadam [1949]: held an easement to store coal in a shed
Grigsby v Melville [1972]: Storage in a confined cellar can constitute as exclusive possession and not available as an easement
Cases Involving Car Parking
Copeland v Greenhalf [1952]: right to keep cars on a narrow strip of land didn't constitute an easement
Batchelor v Marlow [2003]: Right to park 6 cars for 9 hours a day could not form an easement as it left no reasonable use for the ST owner
Moncrieff v Jamieson [2007]: Set out deprivation of ownership test as Obiter Dicta
Sole user or exclusive occupant of ST is not inconsistent with nature of easements as every easement will bar some ordinary use of ST
Possession and control of ST is inconsistent with the nature of easements
Modes of Acquisition
Express
Can be made through 3 methods
Statute
Estoppel
Words
Can be a contract or a deed
If it is a deed, s52 LPA 1925 takes hold
If a contract then s2(1) LP(MP)A 1989 takes hold
Implied
Is there a reason an easement should exist, despite there being no express acquisition by contract or deed?
Grant or reservation can be granted through either necessity or common intention
Necessity
Where the right is essential for use of land granted or retained
Union Lighterage v London Graving Dock (1902): is the land absolutely inaccessible or useless without the easement
Requirements is necessity which must exist at the time of granting the DT
Situations include:
Landlocked DT: Clark v Cogge (1607)
Support between terraced or semi-detached houses: Williams v Usherwood (1983)
Common Intention
Requirements
Parties must at the time of the grant, have shared intention that land should be used for a particular purpose
Easement must be necessary to give effect to the common intention
Wong v Beaumont [1965]: Easement to construct and maintain ventilation duct, giving effect to parties' intended use of premises
Grant can also be implied through s62 LPA 1925
Can apply automatically in 2 different ways:
Ensures continuing entitlement to easement or profit that was already being enjoyed
Can also have transformative effect e,g, changing a license to an easement
Requirements
Right must have been exercised over land retained by the grantor
Right must have been conveyed at the time of enjoyment
Conveyance must be of legal estate
Contrary intention must not have been expressed in the conveyance
Difference between s62 and Wheeldon v Burrows
Wheeldon only deals with easements and not profits, but s62 deals with both
S62 requires continuous and apparent easement whereas Wheeldon requires it to be necessary for the enjoyment of the land granted
Wheeldon deals with both legal and equitable easements but s62 only legal easements
Wheeldon transfer of land includes safe and voluntary transfer, s62 is concerned with conveyance
Easement can be granted under Wheeldon v Burrows
Right must be continuous and apparent
Right must be necessary for the reasonable enjoyment of property gained
Quasi-easement used by common owner at the time of the grant for the benefit of the part granted
For this to apply, one person must have owned both pieces of land before transfer
Prescription
Three Methods of Prescription acquisition
Common Law
Must prove continuous use for a 20 year period
No requirement that easement must be in use at time of the claim
However, if there is any proof that the easement was not used at any point since 1189, the claim is defeated
Virtually impossible to make a claim
Statute: Prescription Act 1832
Long User
Easement of 40 years or profit of 60 years
Period of use must be right up to the date the action is brought to court
Claim can be deemed as absolute and indefeasible
Short User
Easement of 20 years or profit of 30 years
Must be next, before some suit or action like long user
Not defeated by proof that use commenced after 1189
Lost Modern Grant
Tehidy Minerals v Norman [1971]: If either party can show a 20 year period of use, then the court will pretend an easement had been granted and just lost paperwork
In order for this to apply, the other party must have had knowledge about the acts done on their land, and failed to bring an end to them, despite having the power to do so