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Easements - Coggle Diagram
Easements
Easements - introduction
species of property right which confers right over neighboring land
terminology
servient tenement: burden land
dominant tenement: benefited land
capable of being
legal
proprietary interests
LPA 1925 s 1(2)(a)
positive
and
negative
easements
positive=give dominant owner to do something positive
negative=right to stop neighbor from doing smtg
negative easement greater burden
Easements distinguished from other rights
right attached to dominant tenement
privately held rights
not public
different from profits a predre
different to lease/freehold - not conferring EP
easements are proprietary
license merely personal
relationship w tort of
nuisance
unreasonable interference w one's enjoyment of land
i
f easement exist = absolute property right
not subject to principle of balancing competing interests
if
easement is interfered
w, owner of dominant tenement
can sue in nuisance
Definition of an easement
Re Ellenborough Park
1) there must be dominant and servient tenement
2) easement must
accommodate the dominant tenement
, be connected with its enjoyment & for its benefit
3) dominant and servient owner
must be different person
4: right claim must be capable of forming subject matter of a
grant
1) dominant and servient tenement
right must
benefit plot A and burden plot B
no easement in gross
Rangley v Midland Railway
in gross = the person having right to land, not land having the right
can rule be justified?
stop us from having too many burden
requiring dominant tenement = important filter
recognition of
easement in gross could overburden
servient tenements
2) must accommodate the dominant tenement
must benefit dominant tenement
1)
Propinquity
of tenements
plot have to be relatively close to each other
dont have to be touching
Re Ellenborough Park
some house directly adjacent to park, other separated by road
doesnt have to be touching but needs to be nearby
2)
must accommodate land
rather than mere personal advantage
connected to normal use of land
no
requirement for rights conferred by easement to be
merely ancillary/subordinat
e to
enjoyment of dominant tenement
Regency Villas v Diamond Resorts
regency villa argue
right to use leisure facilities
w/o payment on adjoining country estate
say wouldnt go villa if werent for leisure facilities
where
dominant
land used for
running business
Moody v Steggles
owner of pub (DT)
put sign
on nearby building (ST)
when
business tied to land
, can see
easement benefiting land as well
can accommodate business
Hill v Tupper
owner of canal
grant 7 yrs lease
of land adjacent to canal --> Mr H, tgt w "
sole & exclusive right to put boats" on canal
Mr H run business, take customer to boats
Mr H say Mr T put pleasure boats in canal, claim easement
Court: Mr H did NOT have easement, just license
Mr H try to use easement to
set up business
that had
no connection w ordinary use of land
merely commercial benefit
distinction b/ business
connect
to land vs. business just
operating
off land
also because dont want
monopoly
(policy consideration)
bottom line = easement that
accommodate normal use of land
Recreational use
to what extent will recreational use be DT
or just personal?
Re Ellensborough park
garden in the middle of houses
function as garden, d
id accommodate land
: use of land
enhance enjoyment of house
BUT
dictum
: right of mere recreation/amusement NOT easement
in here pleasure garden COUNT as easement
solved by
regency villas
assumption that DT can enjoy facilities free of charge when villas was sold
SC:
recreational use QUALIFY as easements
1)
doesnt matter if recreation is itself an end
e.g. visitor go villas just to use recreational facilities
2) its
whether recreation rights actually benefit land
here
villas def benefited from facilities
3) the easement
must be used for the benefit of DT only
Harris v Flower
pub (DT) enjoyed
right of way
over neighbor (ST)
DT owned additional, non-dominant land
DT owner sold both plots --> Mr F
Q: whether Mr F can use
right of way to access both dominant/non-dominant land
use easement to get to
Dominant land ONLY
CA worried new owner get extra profit out of ST
Peacock v Custins
X own DT, right of way over ST owned by Y
X also own extra field (non-dominant)
whether X could t
ake stuff over Y's land
to access DT,
then go to non-dominant land
NOT Permitted
if do that = using ST to farm non-dominant land
not ancillary use to DT, thats
separate use
Massey v Boulden
D owned village greem, C owned house adjacent
C argued house benefit from easement via prescription
C enlarge house by two rooms
whether easement extend to 2 extra rooms
PERMITTED, two rooms
ancillary
to use of main house
more
generous interpretation of ancillary
"ancillary" doctrine
not
"in substance"
use for the
benefit of non-dominant land
one factor = whether
benefit
to non-dominant land is likely to
have its own "commercial value"
Giles v Tarry
similar to
Harris
facts
T had DT benefit from right of way over ST owned by G
T owned additional non-dominant land
to comply w
Harris
, T led sheep through G's driveway, into DT, then to public highway, back to DT, then into non-dominant way
need to look at the
substance and intention of dominant owner
criticism
: infringement depend on thought process of DT?
Court: NO, one continuous operation
use of highway is "artificial device"
Gore v Naheed
DT = granary, express easement over courtyard
express easement: right of way granted for all purpose connected w the use and occupation of granary
owner of DT own additional garage
can they drive into courtyard?
CA: parking was
part and parcel of the intended use of easement
(for all purpose connected w use and occupation of granary)
due to the express words use
give way around
Harris
3) Dominant and servient owners must be different person
cant have easement over land that u own
can't create easement where single owner over all plot
Parshall v Bryans
quite straightforward requirements
4) the right claimed must be capable of forming the subject matter of a grant
right cant be easement
unless capable of being granted by deed as easement
an
umbrella
term for other requirements
1) capable grantor and grantee
grantor/grantee must have legal capacity to receive grant
e.g.
tenant
can grant/receive easement, easement
would attach to leasehold estate
2) within the general nature of rights traditionally recognized as easements
cant be easement unless it is an easement?
can't just make up a right
point to precedents
e.g. right of way/lights/drainage/hang signs etc
recognizing new easements
law can change as society change
but expanding has consequences
1) positive easements
Miller v Emcer Products
: going to toilet of someone else's land
Coventry v Lawrence
: making noise
purported DT used his land for go-karting
purported ST sue nuisance for noise
DT argued
easement
acquired through long use
Court: making noise CAN be new positive easement
Regency Villas v Diamond Resorts
another e.g. of new easements
easement to use leisure facilities
justification:
benefits society
policy reasons
facilities are
"beneficial part of modern life
"
2) negative easements
VERY different when it comes to negative
category virtually closed
having negative easement is more restrictive for ST
reluctant
to create new ones
might stop land development
restrain
ST's occupation and use
a "very strong case" would require to create new
alternatives
? : restrictive covenants/nuisance
No positive burden on ST owner
ST just need to let u use easement
ST cannot have any positive duty
"passivity rule"
: ST just need to be passive
need to let DT to "step in" for
repairs
Regis property v Redman
: easement = run water pipes, NO obligation on ST to provide heated water
Gosling v Bradbury
: DT right to water, ST doesnt have to provide electricity to pump that water (no positive duty)
but need to let DT to pay for the pumping
Regency Villas
SC split 4:1 regarding the
passivity rule
can the right to use recreational facilities be easement?
require too much maintenance on the part of ST?
majority (lord briggs)
COULD be easement - didnt infringe passivity rule
didnt require ST to do active duty
1) easement CAN be granted where some kind of maintenance is required
2) often in practice ST owner do maintenance cuz they themselves wanna use that
3) its possible to create easement whose use is conditional on DT paying ST to maintain
this is not true in
regency villas
4) the leisure complex was actually maintain by ST, paid by charging general public to use facilities
but
NO obligation on ST to maintain for the benefit of regency villas
this might mean that ST will stop maintain - e.g. swimming pool no water etc, but DOESNT STOP them from being easement
not maintained, cannot be used ≠ not easement
this is the case for most easement - if not maintain can't be used
5) there will be limits - e.g. recreational facilities that require continuous management by ST
no "step in" right by DT would make workable
e.g. free rides on miniature steam train
very expansive interpretation of "step in" rights
minority (Lord Carnwath)
no evidence of what DT could have done by stepping in
ST is required to manage the whole estate
- DT can't realistically step in to do that
should NOT recognize as easements
==> the law now clear that rights in
regency villas
CAN be easements
ST is going to be maintaining BUT they dont has a duty to
DT can step in
and continue those rights
anomalous easement that
breach
passivity:
fencing
ancient right
ur neighbor provides fence on the boundary
3) Sufficiently definite right
to be capable of
subject matter of grant
need to be sufficiently definite
examples
william aldred's case
: right to view too ill defined
webb v bird
: receiving wind cannot be easement
unless through defined channel
same is true for right to light
Re Ellenborough Park
: merely wandering over land NOT easement
BUT right to pleasure garden can, sufficiently definite
need to use precise language
4) must not leave servient owner w/o any reasonable use of his land (OUSTER principle)
DT right over ST land must NOT be so great as to oust S's own enjoyment
1) unduly burdensome to ST
2) confused state of
doctrine
-
EP
should associate w freehold/leasehold only
arise when e.g. right to park car/storage
Early cases:
inconsistency
Copeland v Greenhalf
: parking here amount to taking possession, i
nconsistent w easement
Wright v Macadam
: right to use coal shed for
storage COULD be easement
Reconciling the authorities
London & Blenheim Estates v Ladbroke Retail Parks
the rule = can't be easement if leave ST without any reasonable use of the own land (ouster principle)
one factor = size of servient land
e.g. park one car on large area might be easement, but a car in smaller area might infringe ouster
question is of degree
Hair v Gillman and Inskip
C argue easement to park car
there was space to park four cars
COULD be easement, ST left w reasonable use of land
Batchelor v Marlow
C own car repair shop, park on D's land
C regularly park 6 car on ST - which could hold 6 cars
CA: does NOT qualify as easement
ST had no reasonable use left
Decision in
Moncrieff v Jamieson
and beyond
Moncrieff v Jamieson
DT at bottom of cliff, could not access by car
DT undisputed right to drive over top of cliff
DT argue right to park on cliff
court ask whether the
ST retains possession
, subject to
reasonable exercise
of the right in question
, control of ST
actually more generous
scottish HoL
subsequent cases continued to apply
Batchelor
Virdi v Chana
claim to park car where ST own just half of parking space
ALLOWED, ST can still use land
enuf to satisfy reasonable use
reasonableness test being applied but
generous
Kettel v Bloomfold
De Le Cuona v Big Apple Marketing
Regency Villas v Diamond Resorts
some discussion of ouster principle but wasnt the point
lord briggs: we dont know if we have reasonableness test (
batchelor
) or some other?
Reform
law commission:
recommend get rid of ouster rule
so long as DT dont have possession
want to avoid future case like
Batchelor
WORK ENDS HERE
Creation of easements
General points
Grants and reservation
ST might
expressively grant
DT
Reservation
only arise in subdvision
Owner A subdivides, grant plot to B, doing so
reserves an easement for themselves
over the land granted to B
convey land to B but kept easement
Form of creation
express grant/reservation
implied grant/reservation
prescription
Legal vs Equitable easements
consequence of distinction
matters when A easement over B, B-->C, does A bind C
impact
priority
easement can be legal or equitable
determining whether legal or equitable
the nature of servient/dominant estates
easement carved out from servient estate -->
servient estate needs to be legal
Duration
LPA 1925 s 1(2)(a) and 1(3)
easement for an interest equivalent to
estate in fee simple absolute in possession
or a
term of years absolute
basically
either last indefinite year OR certain number of years
Formalities
easement capable of being
legal
needs formality
Express grant/reservation
easement legal or equitable
formalities
required for easement to be created at law
1) created by
deed
LPA 1925
s 52
(1)
2) be registered as
benefit on DT's title
, AND
burden as notice on ST's title
need BOTH
LPA 2002
s 27(
1), (2)(d)
examples of
equitable
easements
might arise via
proprietary estoppel
Chaudhary v Yavuz
or
specifically enforceable contract
for easement
Walsh v Lonsdale
LP (MP) Act s 2
purported grant by deed NOT registered
LRA 2002 s 27(1)
purported creation of easement (non-contractual) by
mere writing
LPA 1925 s 53(1)(a)
Necessary ancillary rights are implied
into express easements
where
reasonably necessary
for easement's enjoyment
AND where ancillary right
itself can be easement
Jones v Pritchard
will
implied
into express easement
any ancillary rights**
reasonably necessary
to enjoyment of easement provided that those
ancillary rights are capable of being easement**
e.g. A has express easement of right of way over B,
law imply right to repair
*Moncrieff
v Jamieson*
D had express easement to drive over top of cliff
D claim right to park = ancillary
Held: there IS ancillary right to park,
reasonably necessary for the right to drive to exist
criticism: this case is special cuz of
extreme geography
; normally have to bargain to park
Implied grant/reservation
important preliminary point
implied easement ONLY arise on subdivision
when part of larger plot transferred/leased
easement implied into conveyance of subdivided plots
implied reservation
= A owner of plot, transfer part of plot --> B,
A's easement implied into the conveyance
if X owns big plot, subdivides and sells both, implied easement may arise from two plots
BUT NO implied easement if land separated already
Easement legal or equitable?
if conveyance to A is
legal
freehold --> easement
legal
if conveyance is
equitable
estate --> easement
equitable
easement
implied into grant of freehold
assume same status as the estate
does NOT need to be in deed or purchase separately
impliedly grant legal easement quite powerful
Policy concerns
implication
is useful safeguard
preventing land from disuse/unmarketable
different treatment
of implied grants & reservations
B-->A, easement may be impliedly GRANT to A during conveyance
law quite
willing
, B is the one in control
if A has big plot, subdivides & sell --> B, easement RESERVED to A
reluctant
, expect A to put in deed
"ought to do so expressively"
for
simultaneous disposition
(owner subdivides & sell both plots to different ppl) --> implied GRANT
Implied Grant
Easement of necessity
narrow
the law prepared to
imply easement
on
subdivision
of land where it is
necessary for the dominant plot
to be
useful
at all
if B owns a big plot,
sell inner part to A,
A now
landlocked
, no access to road unless across B
law imply right of way for A
strict test:
w/o easement cannot be used at all,
not just necessary to reasonable enjoyment
Manjang v Drammeh
D--> S land next to street in Gambia
D acquired from 3P
strip of land b/ S land and river
D claim easement of necessity over S's land
D FAILED, NOT necessity, not the only way that D could access land
did NOT satisfy necessity test
test very strict
not base on public policy
but
implication from the circumstances
what parties intended instead of
whether easement make land use better
Easements of intended use
common intention
Pwllbach Colliery v Woodman
:
intended use doctrine
easement will be implied if
it is necessary to give effect to the party's intended use
to dominant land
1) what is party's
intended use
of conveyed plot
2) is
easement necessary
to give effect to this intended use
3) easement will arise via
intended use doctrine
for A's benefit
assume B conveys to A:
Wong v Beaumont
owner lease to Mr Wong to use as restaurant (DT)
need ventilation system, going over rest of landlord's land
Wong argue easement by intended use
CA:
YES
easement had arisen
1) intended use = restaurant
2) is easement necessary to give effect to that? YES, need to comply w regulations
3) easement attached to W's leasehold
Donovan v Rana
A owned plot, subdivided, sold part to B
sold as
building plot
for
modern dwelling house
sold w express right of way over A"s driveway
B-->C, C build house, dig up A's driveway to lay utilities pipes, C claim easement via intended use
Court:
intention = build modern home, necessary to imply easement here
1) intention: building sold as development plot
2) necessary to give effect to that intention?
intention = modern dwelling home --> necessary to use utility pipes
Rule in Wheeldon v Burrows
owner owns plot, next to sea, owner's house accessible from road
owner decide to sell off left hand plot but keep right hand plot
there was
quasi-easement
not an easement (over ur own land)
factual easement
when dominant house transferred/lease, quasi-easement might be upgraded to legal implied grant easement
rationale: grantor shouldnt be able to derogate from their grant
if house used to benefit from right of way, then should continue benefit if house sold onwards
Conditions
1) Quasi-easement
"continuous and apparent"
be obvious on a reasonable inspection of land
Borman v Griffish
Mr J owned large estate, drive from road led into estate, past house and then onto hall
Mr J equitable lease of house to Mr B
Mr J lease remainder of estate --> Mr G, G want to prevent B from using the drive
B argue easement attached to grant
WASNT
continuously
used BUT was
apparent
quasi-easement --> equitable easement
on the grant of equitable lease
provided the easement is apparent, doesnt have to be continuous used
2) necessary to the
reasonable enjoyment
of the property granted
lot less strict than the necessity test
only relates to reasonableness
Taurusbuild v McQue
argue easement arisen by
Wheeldon
its softer test
- necessary to the reasonable enjoyment of the property
3) "owners of the entirety" enjoy the quasi-easement "for the benefit of the part granted"
does this require owner to occupy both plots prior to conveyance?
subdivision
it must be the owner of whole enjoying the benefit of quasi easement rather than anyone else
dont know if this is a requirement or just statement in
Wheeldon
4) Excercised prior and up to the time of transfer
5) no contrary intention
if parties
expressively said no easement
then cannot counter that
Law of Property Act 1925 s 62
certain existing right attached to land when convey --> new owner
things that are fixed to land becomes part of it
when land conveyed, fixture also conveyed
easement can be newly created during conveyance
personal right --> easements
International Tea Stores
landlord owned two adjacent plots
he occupied one (retained plot), lease the other
gave tenant license to walk over retained land
conveyed tenant fee simple, easement implied?
H:
Carry w the conveyance, UPGRADED to fully fledged easement
giving
s 62 "magic effects": License --> easement
Three requirements
1)
"conveyance" of legal estate
International Tea Store
:
Grant of freehold
--> tenant, satisfy this requirement
2) prior diversity of occupation/continuous & apparent use
prior to the relevant subdivision
Wood v Waddington
:
s 62 only applies to advantages "enjoyed" w land
at the
time of conveyance
two plots prior to relevant subdivision were in prior diversity of occupation
although under same ownership,
occupy by TWO different ppl prior to conveyance
what happened in
international tea store
- prior to grant of freehold were in diversity of occupation
Goldberg v Edwards
Ms E owned house, has an annexe
two new tenants (G,S), l
ease of annexe + personal license
to walk through the house
Ms E allow tenant to possess annexe prior to formal lease, G, S walk through house
did tenant's license --> easement via s 62?
ss 62 converted personal right --> easement attached to the legal lease
there were prior diversity occupation - tenants already living in annexe
Platt v Crouch
owner owned two plots(1 hotel 1 moorings)
owner sold hotel plot, without including mooring rights on the retained land
Hotel's purchaser claimed easement to use mooring
NO prior diversity of occupation BUT mooring used in continuous&apparent manner --> GOOD ENUF
to satisfy this
mooring attached to grant of legal freehold
Wood v Waddington
:
EITHER prior diversified occupation OR continuous & apparent use
3) No contrary intention (evident from deed)
ensure doesnt go against common intention
Comparison w rule in
Wheeldon v Borrows
both: theres right to use after subdivision
s 62 restrict to conveyancing of legal estate
in
Borman
subdivision grant equitable lease, could NOT use s 62
W v B
give rise to implied easement here - its wider
but sometimes
W v B
narrower - e.g.
Goldberg
cuz access through house NOT necessary to annex owner -
W v B
does not apply
Criticisms
penalize act of kindness
- e.g.
Goldberg
(Ms E allow tenant live before lease, prior license --> easement)
those in the known will exclude its operation
couldnt rly justify on policy ground
retaining implied easement by s 62
Compatibility of doctrine of implied grant w Human Rights
cases like
Goldberg
where the old lady bound by easement
- possibly problematic
Implied Reservation
A owns big plot, subdivides, grant plot to B
in so doing, A reserve easement for themselves
since A in control, expect them to expressively reserve
4 modes to imply grant,
ONLY 2 available to reservation
1) Easements of necessity
2) Easements of intended use
reform of law of implied easements
artificial, should be more straightforward on public policy
one suggestion is to look at party's intention
WORK ENDS HERE
Introduction
Policy concerns
easement/covenants capable of both
limiting
and
facilitating
use of land
reform
none of them reached to statute