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Easements, image - Coggle Diagram

- - - - There must be a dominant tenement (DT) and servient tenement (ST) (tenement means land)
      - An easement must accommodate (benefit) the dominant tenement (Bailey v Stephens (1862) (acommodate the land, not the owner!)
      - Dominant and servient owners must be separate persons
      - Must be capable of forming the subject matter of a grant
        
        1) There must be a capable (identifiable) grantor and grantee.
        2) The right claimed must be sufficiently definite (William Aldred's case - no easement of good view)
        3) The right must adhere to the general principles of the nature of an easement, which are:
        
        Must not impose positive burden on ST owner
        
        Cannot amount to possession or joint user of ST land (Moncrief v Jameson - Ouster Principle)
        
        The courts have 2 approaches to the Ouster Principle:
        1) Main approach More favourable to ST owner: if the exercise of the right would leave the ST owner without any reasonable use of the land, then it cannot be an easement (Batchelor v Marlow - extensive use of the land meant that the ST owner couldn't use his land for most of the week)
        2) More favourable to DT owner: the question is whether the ST owner retains posession and (subject to the reasonable exercise of the right in question) control of the ST (Moncrieff v Jamieson (2007))
        Warning: The approach in Moncrieff is dicta from a Scottish appeal (bwehhh).
  - - - A. Express Grant
        Must be created by deed (s.1(2) LPA 1925).
        Must be registered (s.27 LRA 2002).
        
        B. Implied Grant
        Implied due to either:
        
        Necessity - Must be shown that the DT is completely useless or valueless without it (*Menzies v.
        Breadalbane* (1901))
        
        Common intention - If it is a common intention of the parties that the land granted be used in some definite or particular matter and the grant is necessary to give effect to that intention.
        
        C. Grant of easements by legal or equitable sale
        Sometimes there is an implied grant of easement for a legal/equitable sale.
        Such easements must be (Wheeldon v Burrows:
        
        There is no diversity of occupation - the owner owned both the ST and DT.
        
        Used by the vendor at the time of sale (Kent v Kavanaugh(2007))
        
        Continuous and apparent, and
        
        Reasonably necessary for the enjoyment of the DT
        
        Alternatively,
        s62 of the LPA 1925:
        Such easements must be continuous and apparent, only if the land used to be owned/occupied by the same person at the time of sale (Wood v Waddington (2016)).
        The consequence of this is that the requirements of Wheeldon and s62 are the same, except s62 does not require an easement to be reasonably necessary for the enjoyment of the DT.
        Wheeldon operates for legal and equitable sales of land, whereas s62 only operates for legal sales.
      - A. Express Reservation
        Must be created by deed (s.1(2) LPA 1925).
        And completed by registration (s.27 LRA 2002).
      - B. Implied Reservation
        Implied due to either:
        
        Necessity - Very strict. (Union Lighterage v London Graving Dock (1902)). If reservation not granted, there would be a huge interference with enjoyment of the land.
        
        Common intention - must be specific and precise (Chaffe v Kingsley (1999)
      - Prescription (Like adverse possession for easements)
        
        Common Law Prescription
        Based on the premise that the acquiescence of ST owner to DT owner's use of their land for a sufficient period of time leads to an easement by grant (Dalton v Angus (1881)).
        Requirements:
        1) Both DT and ST themselves must be freehold estates (Simmons v Dobson (1991))
        2)Claimant must be a user 'as of right':
        
        No force - neither physical nor metaphorical (Dalton v Angus (1881))
        
        No hiding - right must be exercised openly so ST owner can stop it if he wishes (Union Lighterage Co.)
        
        No permission - Permission is fatal to ST owner (Odey v Barber(2007)). A licence can be given, but if the claimant goes beyond the permitted use then a claim may start (Hill v Rosser (1997)).
        
        3) Usage must be lawful and continuous
        
        If the conduct is unlawful due to no right to be on the land, prescription may exist. But if unlawful in other ways, no prescription (Bakewell v Brandwood (2004))
        
        Usage must be continuous - does not need to be every day but must be substantively continuous (Hughes v Incumbent of the Benefice of Frampton-on-Severn (2021)).
        
        Lost modern grant
        Must show 20 years continuous usage
        Can be defeated by showing that ST owner was not competent to grant or that land was held in common ownership
        
        Prescription Act 1832
        s2 (any easement except right to light):
        20 years continuous and uninterrupted usage up to the time of claim and must be user as of right.
        Can only be defeated by oral or written permission (which makes the right a licence?)
        40 years continuous and uninterrupted usage up to the time of claim and must be user as of right (I think).
        Indefeasible unless permission given in writing
        s3 (Right to light)
        20 years continuous and uninterrupted usage up to the time of claim and does not have to be user as of right.
        Indefeasible unless permission given in writing
        s4 (Interruptions)
        Any obstruction to the exercise of the right will only be taken as an interruption if in place for 1 year without any action by the claimant
    - - Arises:
        1) When formalities are defective - must have at least sufficient documentation for an estate contract (Energizer supermarkets v Holiday Snacks (2022))
        2)If the easement was not granted for a term equivalent to freehold or leasehold
        3)Through proprietary estoppel (Crab v Arun (1975))