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Easements - Coggle Diagram

- - - - Ellenborough Park :Court recognised the right to use the garden was for the benefit of surrounding properties (would contribute to their enjoyment)
      - Regency Villas, the court found valid an easement providing for the use of recreation/sporting facilities at a country club
      - It is possible to create an easement where benefited and burdened land owned by the same person: s 108(3) LTA
        ● Practically useful for subdividing developers.
  - - - The terms of the easement must be sufficiently clear (well defined).
    - - There may be no positive obligation on the survient/burdened owner unless agreed (Cf. Regency Villas)
        
        Regency Villas: : stretching ‘mere passivity’ to imply positive obligations on burdened landowner for new models of ownership
        • ‘Mere passivity’: burdened landowner isn’t meant to have to do anything to meet the easement
        • UKSC in Regency stretched ‘mere passivity’ to uphold an easement granting recreational rights in country club grounds to surrounding properties – those easements implied burdens of management of the facilities.
        • Majority acknowledged this took the law much further than Ellenborough, but argued they should accommodate new types of property ownership as far as possible (e.g. country club, timeshare apartments).
        
        Barring specific agreement, the easement must be negative from the burdened owner’s POV.
        
        o They can’t be required to do something (e.g. incur expenditure) unless specific agreement.
        
        o In practice, negotiating a ROW easement = implied powers relating to maintenance.
    - - An easement is a right to do something on another’s land – not to exclusively occupy/possess.
        
        Would the easement oust the person of the enjoyment of their land?
        Joint occupation is a matter of degree determined on the facts: Schmuck
        • Does the easement leave the burdened owner without any reasonable use of
        the land?: London & Blenheim Estates
        
        • Easement allowing for the rights to haul out, wash, repair, store, maintain boats on burdened reserve land did not deprive the Council or public of reasonable use: Schmuck
        o Area affected by the easement is small
        o Use of the easement is time limited (60 days per year)
- - - - Interpretation of documents (easements and covenants) registered/noted on LT title.
        It remains unsettled whether extrinsic evidence, outside of the registered documents, can be used to interpret the context
        • Obiter comments in Growth No. 2 favour the approach in Westfield Management Ltd (HCA)
        Extrinsic Evidence:
        The extrinsic evidence on interpretation of a covenant is limited to what someone with access to documents on the register, and can as a third-party, read from the land and its context of the Registered documents should be construed without regard to extrinsic evidence not apparent on the face of the register.
        o But will not exclude reference to facts a reasonable future reader of the document could be expected to be aware of and would recognise as relevant and which they have access to.
  - - - If a grant is unrestricted, it is not implicitly restricted to reasonable use.
        White v Grand Hotel • Is the change beyond anything contemplated at the time of grant?: White
        
        non-excessive:
        Use of benefitted land can change, and provided the change in use of the ROW isn’t excessive, the court won’t cut down/restrict the terms of the grant.
        Non-Excessive Use
        
        • Excessive excavations or works – Plum v Hawkins: Carrying out extensive excavations on
        ROW to improve his own access (said he was repairing). HELD: Excessive, outside the grant
        – beyond his entitlements to repair.
        
        • Excessive speed down ROW – Brown v McHattie: Installation of judderbar on shared ROW
        acceptable as a means to prevent excessive speed (more than 20km/hr) down ROW.
        
        • Using ROW to access land owned by benefitted owner, but which is not benefitted land – Peacock v Custins: The ROW may be used for the enjoyment of the benefitted land, and not the enjoyment of other land unless access to the access to other land an incidental/ancillary purpose of using the benefitted land (crossing for a picnic would be OK, because not primary purpose).
- - - - a) Court may grant relief:
        court may grant relief if it is “just and equitable in the circumstances”: s 323(2) PLA 2007
        
        b) having regard to
        In doing this they may have regard to: s 324 PLA
        (a) The reasons why the wrongly placed structure was placed over the land affected
        (i) Was the encroacher careless? Intentionally sneaky?
        (b) Conduct of the parties
        (c) Extent to which any person has been unjustifiably enriched at the expense of the person seeking relief because the owner of the land affected has become the owner of the wrongly placed structure.
        (i) If the court doesn’t grant relief, would it be unjust for Lot B to gain ownership of that portion of Lot A’s house?
        
        c) relief may involve
        If it is just and equitable in the circumstances the court may: s 325
        (a) Vest the land in the owner of the land affected by or the land intended for, the wrongly placed structure, or in any other person with an estate or
        interest in either of those pieces of land.
        (b) Grant an easement over the land for the benefit of the land affected
        by, or the land intended for, the wrongly placed structure.
        E.g. Where a canopy is a wrongly placed structure protruding into
        airspace of neighbouring land, may grant easement.
        (c) Give a right to possession for the land for the period and on the conditions specified by the court.
        (d) Allow or direct any person specified in the order to remove the whole or any specified part of a wrongly placed structure.
        (e) Require any person to whom relief is granted under the above to pay any person specified in the order reasonable compensation.
    - - What is landlocked land.
        Landlocked land is a piece of land to which there is no reasonable access: s 326
        
        Step 1: Is it land locked land?
        • Reasonable access must be construed in the context of the property:Kingfish Lodge
        o What is reasonable access depends on the nature of the locality and particular context of the land
        o Applicants are less likely to be successful where they want new access (e.g. never been able to get there by road).
        • The onus is on the applicant to show that there is no reasonable access and that relief should be granted: Cleveland v Roberts
        • The fact that the applicant has, or may create, some limited access to his land without the assistance of the court is not enough: Cleveland v Roberts
        • The issue is whether reasonable practicable access is available.
        
        If Yes,
        
        Step 2: Apply under s328 (1)- (not a must so court are not obliged to grant reasonable access)
        • So the court can grant an easement e.g. right of way into the land locked land
        • Or the court could grant a strip of land to the land owner to access thier land locked land.
        • PLA 2007 s 328(1)
        o A court, on an application under PLA 2007 s 327, may—
        (a) make an order granting reasonable access to the landlocked land; and
        (b) for that purpose, specify in the order that—
        (i) any other piece of land (whether or not adjoining the landlocked land) must be vested in the owner of the landlocked land; or
        (ii) an easement over that other piece of land must be granted for the benefit of the landlocked land.
        
        Step 3: Court must have regard to the collosing consideration
        • PLA 2007 s 329
        o In determining an application for an order under PLA 2007 s 328, the court must have regard to—
        (a) the nature and quality of the access (if any) to the landlocked land at the time when the applicant purchased or otherwise acquired the land:
        (b) the circumstances under which the land became landlocked:
        (c) the conduct of the parties, including any attempts they have made to negotiate reasonable access to the landlocked land:
        (d) the hardship that would be caused to the applicant by the refusal of an order, in comparison with the hardship that would be caused to any other person by the making of an order:
        (e) any other relevant matters.
        
        Step 4: If yes, the court grant order. When making an order the court must consider the following--
        • PLA 2007 s 330
        o In making an order under PLA 2007 s 328, a court may impose any conditions it thinks fit, including conditions relating to the following—
        (a) the payment of reasonable compensation by the applicant to any other person:
        (b) the exchange of any land between the applicant and any other person:
        (c) the fencing of any land and the … maintenance of any fence:
        (d) the upkeep and maintenance of any land over which an easement is to be granted: …
        (f) the time within which any work necessary to give effect to the order is to be carried out: …
        (h) any other matters that the court considers relevant …
        
        1 more item...
- - - - (1) On application, the court may modify an easement if satisfied that:
        (a) It ought to be modified because of a change since its creation in any or all of the following:
        (i) the nature or extent of the use being made of the benefited land, the burdened
        land, or both
        (ii) character of the neighbourhood
        (iii) any other circumstance the court considers relevant or;
        (b) Continuation in force of the easement would impede the reasonable use of the servient tenement in a different way/to a different extent than could have been reasonably foreseen by the original parties or;
        (c) Every person entitledwho is of full age and capacity–
        (i) Has agreed that the easement or covenant should be modified or extinguished
        (wholly or in part); or
        (ii) May reasonably be considered, by his or her or its acts or omissions, to have
        abandoned, or waived the right to, the easement or covenant, wholly or in part
        (d) The proposed modification or extinguishment will not substantially injure any person
        entitled;
        
        (2) An order under this section modifying the easement may require any person who made an application for the order to pay any person reasonable compensation as determined by the court.
        Note: This is discretionary.
        
        Courts take a conservative approach to this power as it has the potential to adversely impact property rights – however, inclusion of this power is an indication Parliament intended courts have the ability, where appropriate, to grant application to modify, even if causing some detriment: Harnden v Collins
  - - - (1) On application, the court may extinguish an easement if satisfied that:
        (a) It ought to be extinguished because of a change since its creation in:
        (i) the nature or extent of the use being made of the benefited land, the burdened
        land, or both
        (ii) character of the neighbourhood
        (iii) any other circumstance the court considers relevant; or
        (b) Continuation in force of the easement or covenant would impede the reasonable use of the servient tenement in a different way/to a different extent than could have been reasonably foreseen by the original parties or;
        (c) Everypersonentitledwhoisoffullageandcapacity–
        (i) Has agreed that the easement or covenant should be modified or extinguished
        (wholly or in part); or
        (ii) May reasonably be considered, by his or her or its acts or omissions, to have
        abandoned, or waived the right to, the easement or covenant, wholly or in part; or
        (d) The proposed modification or extinguishment will not substantially injure any person
        entitled;
        
        (2)
        Other ways:
        ● Section 108 LTA: Surrender of easement
        ● Section 112 LTA: Extinguishment by easement variation instrument
        ● Section 114 LTA: Extinguishment of occurrence of specific event specified in the document
        creating the easement.
        ● Section 115 LTA: Application to extinguish if easement is redundant
        [For some of these the mortgagee must consent].