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Easements II - Coggle Diagram

- - - - (1) Reservation through necessity:
        
        Concept requires the right to be something that is essential in order to be able to use the land.
        
        Not for reasonable enjoyment
        
        e.g. a right of way in a land-locked property
        
        Union Lighterage Co. v London Graving Dock Co. [1902]:
        
        The tie-rope for support cannot be considered as an implied easement for necessity but rather, only for enjoyment of D's property
        
        C is entitled to remove the tie-rope
        
        Manjang v Drammeh [1990]:
        
        When there's an alternative route (i.e. through the river) to access to the DT, there is no real necessity for the right of way, albeit having it made access more convenient to the DT.
        
        But, it is not needed, = easement cannot exist
        
        Nickerson v Barraclough [1980]:
        
        In a land-locked situation, the land will be rendered unusable/sterile unless an easement is granted.
        
        Such easement of necessity is based on implication from the circumstances and common intention
        
        Barry v Hasseldine [1952]:
        
        Has to be shown that without the implied easement, the land cannot be used. Its not enough to show convenience
        
        When a property is land-locked, there is a normally an implied right of way irrespective of the common intention of the parties
    - - Stafford v Lee [1992]:
        
        Facts: An area of woodland + a pond was conveyed to C's predecessors. There's a drive from this land to the nearby highway but no grant of the right to use the driveway. C wanted to build on the woodland but D refused to allow right of way on the driveway.
        
        Held:
        
        Court inferred that the intention of the original parties must have been to grant the easement of the right of way over the drive on the conveyance of the woodland and the pond
        
        But Court indicated that this can only be done in cases where parties intended that DT will be used for a definite and particular manner
        
        On the facts, the original conveyance included a plan of the land that showed neighbouring buildings = original parties contemplated that the woodland will be used for a similar purpose
      - Linvale v Walker [2016]:
        
        Facts: C purchased a park for investment purposes. D owned a ransom strip in his personal name. Strip was also a fire escape route for a factory on the park. Receivers of the factory claimed the factory has a right of way over the strip. But the factory was vacant for a long time. There's no continue use and cannot be established as an easement per S.62 and Wheeldon v Burrows requirement
        
        Held: But Court found that its the parties intention that the factory would be let and that the fire escape route will be used by the tenant. An implied easement found based on common intention that the park will be fully let to maximise profit
        
        Wong v Beaumont Properties [1964]:
        
        Facts: C (a tenant) was running the property as a restaurant. D complained about smells from the restaurant and after inspection, ducts should be installed as proper ventilation system. But the duct was required to be fitted outside the wall of the D's property, where D refused access.
        
        Held: There's a requirement for proper ventilation for a restaurant to operate legally. Easement can be implied for the purpose where the lease cannot be carried out without it. D consented to the use of the premise as a restaurant. D knew this and should honor the right of C for the ventilation
    - - (1) Continuous and apparent - Borman v Griffiths [1930]:
        
        The requirement of apparent is based on principle of non-derogation from grant.
        
        By the vendor preventing the purchaser from using the right when it was reasonable for the purchaser to have expected to be able to use it, will amount to the vendor granting with one hand and withholding with the other
        
        Borman v Griffith [1930]:
        
        Facts: DT in question is a garden sold to C (a farmer where his ST is a hall leased to D). Both premises were located in a large park only accessible through 1 road. C used this main road to access his garden. This entrance was in D's property. The right of way was not mentioned in the agreement. D objected to the use
        
        Held: Where there is no express provisions on right of way, it may be implied under principles of Wheeldon v Burrows.
        
        Where implied easements are necessary for the reasonable enjoyment of the property. Without this easement, C cannot access his property
        
        Wood v Waddington [2015]:
        
        Facts: No specific right of way was granted when D divided his property and sold to others, predecessors-in-title of Wood (C). General clause "benefit of all liberties privileges and advantages of a continuous nature now used / enjoyed by or over the property."
        
        Held: General clause does not amount to express grant of easement. But the use of the pathway was both apparent and regular = a right of way per S.62 LPA 1925
      - (2) Necessary for the reasonable enjoyment:
        
        Easement in question must be necessary for the reasonable enjoyment of the land
        
        Does not mean that it has to be essential for the use of the land
        
        Not difference between enjoyment and convenience in Wheeler v JJ Saunders [1995]
      - (3) Used by the owner at the time of grant - Wheeler v JJ Saunders Ltd [1995]:
        
        This rule only operated where easements necessary for the reasonable enjoyment of the property granted were used at the time of the grant by the common owner
    - - (1) Legal easement:
        
        The conveyancing must occur by deed and not mere written contract.
        
        S.62 only creates legal easements and not equitable easements (by operation of the law)
        
        (2) Exclusion:
        
        Application of this section can only be excluded with contrary intention (i.e. if the ST owner shows intention not to grant / expressly excluding the grant)
      - (3) Ownership:
        
        If there's no diversity of occupation (i.e. both the ST and DT are owned by 1 person aka quasi easement), then the right must be continuous and apparent
        
        If the right is not continuous and apparent at the same time of common ownership, the right must become apparent where there is diversity in occupation
        
        (4) Element of easements:
        
        The grant only applies to rights that can exist as easements as per Re Ellenborough Park
      - Wright v Macadam [1949]:
        
        Facts: D leased the top floor of C's flat. In the 1st lease, there was right to use shed in garden of flat for coal storage. When the 1st lease expired, the renewed lesae by deed did not mention anything about the shed usage. D demanded repayment for the usage of the shed.
        
        Held: Renewal of the lease was done by way of a deed, its a conveyance per S.62. There's an easement of storage implied into the renewed lease agreement
        
        Harry v Gillman [2001]:
        
        Facts: D had a 7-year lease of a school built at the back of a 3-storey building that had a forecourt. It had a right of way by the building but no right of way over the forecourt. Building was later sold to C. D claimed that she had parking right in the forecourt beforehand, which turned into an easement per S.62(1) when she bought the school, even though conveyance never mentioned about parking
        
        Held: Permission was capable of being an easement
        
        P & S Platt Ltd v Crouch [2003]:
        
        Facts: owned 3 pieces of land, accessible by boats. The moorings were used by guests on the land but were let separately. C purchased a hotel on D's land and claimed for rights to the moorings.
        
        Held: Purpose of S.62 was to convert rights into easements. Rights were enjoyed by the hotel guests before the purchase and were always used as part of the hotel business. The use was continuous and apparent = easement even if there's no diversity in occupation
- - - - Nec vi - (without force):
        
        Acquisition of right over ST must not be obtained through force
        
        Not only refers to rights obtained through force/coercion
        
        Winterburn v Bennett [2015]:
        
        Owners of a car park put up signs making it clear that customers for C's restaurant must not park there. A deliberate defiance of notice cannot be relied upon to establish easement by prescription
      - Nec clam - (without secrecy):
        
        Right exercised by DT owner cannot be a secret / hidden. Must be done with a certain degree of knowledge to the ST owner (but cannot to the extent that it amounts to positive permission
        
        Union Lighterage Company v London Graving Dock Company [1902]:
        
        Romer LH opined that prescriptive right should only be acquired when the enjoyment has been open - a diligent owner would've or must have a reasonable opportunity of becoming aware of that enjoyment
        
        Liverpool Corporation v H. Coghill Son [1918]:
        
        D discharged polluted water through the piping of C but done intermittently and usually at night, where C could not have actual notice. A claim for such right must fail
      - Nec precario - (without permission):
        
        Use as of right is inconsistent with the permission of the ST owner since someone who has a right does not need permission. - Permission may be expressed / inferred from the overt and contemporaneous acts of the owner
        
        But there must be some positive act by the owner of ST to infer a permission to use
        
        Tara Hotel Ltd v Kensington Close Hotel Ltd [2012]:
        
        Lewinson LJ held that acquiescence or encouragement of activity don't amount to implied permission. There must be an overt act that is understood to amount to giving permission
    - - Simmons v Dobson [1991]:
        
        In common law prescription, user must be or on behalf of a fee simple owner against a fee simple owner.
        
        As easement can be granted expressly by a tenant for life or tenant for years so as to bind their respective limited interests but such rigth cannot be acquired by prescription
        
        Wheaton v Maple & Co [1893]:
        
        Whole theory of prescription at common law is against presuming any grant or covenant to to interrupt by or with any one except an owner in fee
        
        A right claimed by prescription must be claimed as appendant (attached) or appurtenant (belonging) to land, and not as annexed to it for a term of years
    - - Diment v NH Foot Ltd [1974]:
        
        Facts: C owns a farm but she was away and her agents let out her farm on her behalf. Another farm rented by D was adjacent C's farm and would use right of way over her farm occasionally in a year. When C returned, she stopped the right of way as it was damaging her land
        
        Held: Degree of continued use depends on facts of each case and the nature of the rights claimed. Infrequent use may not necessarily destroy a claim of continuity. Prescriptive claim to a right of way may even be successful e.g. if there were only 6-10 uses in a year for the past 35 years. Since C didn't have the knowledge of the use = no presumption of use
        
        Mills v Silver [1991]:
        
        D's farm has access along C's farm. It was contented that previous owner of D's farm had used this access freely but not regularly. D never used it regularly as the access becomes difficult during rainy seasons. D intended to employ a 3rd party to lay stones on it to make access more user friendly. C objected to this
        
        Held: Must consider whether for the necessary period, the use is such that to the mind of a reasonable person, a continuous right of enjoyment is asserted. If yes and owner of ST knows/ought to have known and does nothing = right established
    - - Duke of Norfolk v Arbuthnot [1880]:
        
        Facts: Fitzalan Chapel sits to the east of St. Nicholas Arundel (a parish church). Fitzalan Chapel belongs to C, who built a wall across to the west end of the chapel separating it from the church. D pulled down part of the wall, among others alleging that the wall obstructed light. The parishioners were entitled to the light by virtue of prescription at common law
        
        Held: claim for prescription failed as there's proof that the church was built in 1389. As such, right to light could not have been in use since 1189