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Easements - Coggle Diagram

- - - - a right of way granted when part of freehold land is sold will be granted forever
      - a right of way granted in a five year lease, will be granted for the term of that lease
  - - - Right to light is enjoyed from the holder’s land and simply requires the servient landowner to refrain from blocking the light to the dominant land (no specific right to light, but there can be a right to light through a defined aperture (specific opening like a window or conservatory)
- - - - example: C owns large piece of land which adjoins to main road, C sells part of land to D and retains part of the land nearest the road, in the transfer deed, C creates a right of way in D’s favour across the driveway on C’s retained land
    - - Reservation is strictly construed against the person reserving it, because they are in a position to reserve exactly what they require. Any attempt by the seller/landlord to extend the right will fail. To interpret the right more broadly would ‘derogate from the grant’, in that the buyer/tenant has lesser use of the land than originally envisaged
      - Cordell v Second Clanfield Properties Ltd – example- reserved a right of way for the benefit of retained land. Later, he sought declaration he was entitled for the accessway to be 28 feet wide, rather than the original 12 feet wide. Claim failed
      - Reservation of an easement example: C owns a large piece of land which adjoins a the main road, C sells part of the land nearest to the road to D and retaisn the rest, in the transfer deed, C retains a right of way in C’s favour across the driveways now on D’s land (is this a quasi-easement?)
  - - - occurs when exercised over land for at least 20 years, yet no express grant or reservation can be traced
      - Easements acquired by prescription will be legal easements
      - 3 types: prescribed at common law, prescription under doctrine of lost modern grant, The Prescription Act 1832
        
        All types have same basic criteria
        
        Continuous user- ‘reasonably regular use’ by a freeholder or successive freehold owners against a freeholder
        
        As a right- the right must have been used without force, without secrecy, and without permission. Exercised ‘nec vi; nec clam; nec precario’ (force would be ignoring protests of servient landowners, without secrecy means reasonable person in position of servient owner must have reasonable opportunity to discover the right- deliberate concealment is not necessary, permission would be if the dominant landowner makes payment to the servient landowner for the use. Tolerating the user is not permission)
        
        For prescription act 1832 the user must prove uninterrupted use for 20 year period (no use for one year period or more is an interruption)
        
        case law
        
        Mills v Silver- track used on neighbouring land to gain access to a farm was used from 1922 to 1981 with servient owner’s knowledge. Used infrequently between 1981 and 1985. 1987 they tried to lay stone along path so they could use in all weather but landowners sued for trespass and claimants claimed an easement by prescription. Use was enough to be easement by prescription as it was used reasonably regularly and track used without force, permission or secrecy
        
        Winterburn v Bennet- delivery drivers for a fish and chip shop used a car park that had ‘private car park’ sign. Claim for parking easement was rejected as it had been used by force (ignored the sign)
  - - - There must be a dominant and servient tenement
        
        Must be two identifiable pieces of land: one which benefits from exercise of the right (dominant) and one which is burdened by it’s exercise (servient) London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
        
        An easement cannot exist in ‘gross’- has to be attached to the land- not a personal right- Hawkins v Rutter
        
        It cannot be exercised by the holder independently of the land (would be license or personal right)
        
        Easement cannot exist if there is no dominant tenement which benefits
      - The right must accomodate the dominant tenement
        
        Right must have some direct impact on the dominant tenement
        
        Swift Investments v Combined English Stores Group plc shows useful questions to ask: does the right benefit any owner of the land? Does it cease to be of use once the dominant owner has parted with the land? Does the right make the dominant land a better or more convenient property? Does the right add value or amenity to the dominant land?
        
        Sometimes difficult to see whether an easement benefits land itself or benefits a business run from the land:
        
        Hill v Tupper- right to exclusively put their boats on a canal was to benefit that business specifically and not necessarily benefit the land or subsequent owners- not an easement
        
        Moody v Steggles- a right to hang a sign for a pub was an easement as it could benefit future owners and was incidental to owning a pub which was a long-established business there
        
        Dominant and servient land must be sufficiently proximate to eavhother. Normally they will be adjoining but this need not be the case (Pugh v Savage)
      - There must be diversity of ownership
        
        Dominant and servient land must be owned by two different people. Owner cannot claim easement over their own land: Roe v Siddons. Benefits enjoyed over one’s own land are quasi easements
        
        Freehold and leasehold over the same land is separate and if the dominant and servient land ever came back into common ownership, any easements would be extinguished
      - The right must 'lie on the grant'
        
        Granted by a capable grantor to a capable grantee (grantor must be over 18 and own the legal estate, grantee must be capable, e.g. cannot grant to ‘residents of a village’ as the body of people can change)
        
        Capable of reasonably exact description. Right must be clear enough for enforcement with reference to a plan. Rights too vague will not be enforced e.g. right to ‘scenic view’ was too vague in William Aldreds Case
        
        Judicially recognised- within general nature of rights traditionally recognised as easements: Borman v Griffith- right of way, Atwood v Bovis Homes- drainage and pipeline. Dalton v Angus- right of support, Regency Villas Title Ltd v Diamond Resorts Ltd- right to use sporting and leisure facilities, Re Ellenborough- right to use land for recreational purpose, Wright v Macadam- right of storage, Kettel v Bloomfold- right to park, **new rights can arise** per Dyce v Lady James Hay, new types of negative easements cannot arise, this should now be via restrictive covenant
    - - Exercise of a right must not amount to exclusive possession of the servient tenement
        
        Re Ellenborough Park- must not amount to rights of occupation or deprive the owners proprietorship of legal possession of the servient land. Easement is an interest, not an estate. In these circumstances it could be a lease or license to occupy instead
        
        Main Test: Ouster principle from Batchelor v Marlow- reasonable use test. Servient owner should have 'reasonable use' left available
        
        ouster principle is binding law- can use the ouster principle in a 'moncrieff way'
        
        Right to store and park generally: they typically raise issues with exclusive possession given the nature of the rights. Providing servient owner retains other control of the space and can theoretically make changes like paint it, and can do anything except interfere with the right (park) then the easement will probably not be disqualified
        
        Test to use only if having difficulty with ouster test being satisfied as it's a lower hurdle and Scottish case: possession and control test from Moncrieff v Jamieson. Asks whether servient owner retains ultimate possession and control of the servient land
      - Exercise of the right by the dominant owner must not involve additional unavoidable expenditure by servient owner
        
        If the exercise of a right in an easement requires expenditure by the servient owner, this right is disqualified as a positive obligation is inconsistent with the concept of an easement
        
        Servient tenement owner is not obliged to carry out repairs to enable the dominant owner to enjoy their easement, instead they allow dominant owner onto servient land to carry out any repairs or maintenance at dominant’s expense (Jones v Pritchard)
        
        Regis Property Co Ltd v Redman- right of supply of hot water meant servient owner had to spend money and therefore it was not an easement
        
        Rance v Elvin- easement upheld for water supply even when paid by servient owner and meter on their land. Servient owner was obliged to allow water to run through pipes and the dominant owner was liable under quasi-contractual obligation to pay it’s share of the bills
      - Exercise of the right must not depend on permission given by servient owner
        
        Express permission will almost inevitably be given when a right is first used. After the initial grant, the dominant owner must exercise the benefit as of right
        If permission is asked everytime, it goes against essence of an easement
        
        Green v Ashco Horticultural Ltd- as he removed his van from the parking space whenever asked to do so, he acknowledges he is only using the space by permission, and not by right- no easement
  - - - express creation (TP1/Lease)
        
        All expressly granted legal interests must be created by deed (LPA 1925 S52) and therefore must comply with formalities under LP(MP)A 1989 S1
        
        Where servient land is registered, easement must be substantively registered to be legal (LRA 2002 S27(2)(d))
        
        If any formalities not met, may be regarded equitable instead
        
        legal easement creation:
        
        Easements are capable of being a legal interest if they fall within definiteion in S1(2) LPA 1925 (created for a term equivalent to freehold or leasehold estate) which means:
        
        - Easement granted or reserved potentially forever can be legal
        
        - Easement granted or reserved for a set period can be legal
        
        - Easement for a period not forever, or a set time (uncertain person) can only be equitable
        
        equitable easement creation: easements for uncertain terms can be described as ‘inherently inequitable’
        
        Minimum formalities are set out in LPA 1925 S53(1)(a)
        Must be made in writing and signed by grantor. No need for registration
        
        Failed legal easements can be equitable easements, failed registration of aan tempted legal easement may be viewed as a contract to create equitable easement. Failed legal easement must then comply with formalities for an estate contract set out in LP(MP)A 1989 S2. Must be made in writing, signed by both parties and include all expressly agreed terms. No substantive registration needed
      - a recognised method of implied acquisition (if any applies, will be implied into document it was omitted from, implied legal easements are implied into transfer or lease, implied equitable easements are implied into contract or equitable lease)
        
        necessity
        
        Applies to implied grant of an easement- implied reservation of an easement would be very rare
        
        Pryce v McGuinness shows necessity will only be applied to landlocked land
        
        common intention of parties
        
        Usually for easements granted- rarely for easements reserved
        
        Where land sold/leased to another for particular purpose and that purpose cannot be fulfilled without the easement. the parties must intend for the property to be used in some definite and particular manner- Pwllbach Colliery Co ltd v Woodman
        
        May also be implied by common intention when the easement is incidental for enjoyment of an expressly granted easement. E.g. a right to park which would also require a right of way to get to the space
        
        Wong v Beaumont Property Trust Ltd example- ventilation required for health and safety requirements for a restaurant- intended to be a restaurant
        
        Donovan v Rana- easement for electricity and sewerage where implied common intention the land would be used for building development. Property sold with benefit of planning permission for a dwelling
        
        reserved easements
        
        Heavy burden of proof to show specific easement was mutually intended for reserved easements. It would not be enough to prove seller or landlord opemly exercised the right prior to first transaction
        
        Yeung v Patel- refused to extend express reservation relating to renewal of gas pipes because claimant landlord had two opportunities to reserve this expressly, in original lease and later variation of the lease
        
        rule in Wheeldon v Burrows (only for granted) can imply into legal doc or contract
        
        An easement will be implied where an owner (A) of a plot of land sells or leases some of their land to an owner or tenant. The new owner or tenant will impliedly acquire as easements all those rights which A had previously exercised over the landit retains for the benefit of the land it has just sols/leased to the new owner/tenant. Prior to the sale/lease these rights were enjoyed as ‘quasi-easements’. They were not ‘proper’ easements as a person cannot have an easement over their own land
        
        Only applies where right being claimed would have been a grant to the claimant
        
        The right must have been enjoyed as a quasi-easement by the seller or the landlord before the land was divided
        
        Quasi-easement must be continuous (need not constant but needs some degree of permanence) and apparent (some clue from a careful inspection of the land or evidence on the land it exists)
        
        Quasi easement must be necessary for the reasonable enjoyment of the dominant land (test met if right enhances the land in some way- fairly easy to satisfy)
        
        The quasi-easement must be in use by the common owner at the date of the transfer or lease of dominant land (it must have been enjoyed as a quasi-easement by the seller/landlord before the land was divided, at the time of transfer or lease of the dominant land, must have been enjoyed in the recent past and be expected to be used again in the near future)
        
        The rule can only operate on a sale/lease of part when immediately prior there was a common owner and occupier of the whole. As soon as there is division of ownership and occupation of the land, any ‘quasi-easements’ that existed at the time of division can become full easements benefitting the land which has now become the dominant tenement
        
        In practice the Wheeldon V burrows is commonly expressly excluded in relevant transfers and leases as otherwise it can lead to created easements without knowledge
        
        Wheeler v JJ Saunders shows ‘necessary for reasonable enjoyment of land’ will not be satisfied if there is another convenient alternative
        
        S62 LPA 1925 (only granted and only into legal docs so will create legal easement)
        
        LPA 1925 S62 states: a conveyance of land includes all easements, rights and advantages enjoyed with that land
        
        Ordinary interpretation means when someone buys freehold or leases land, the tenant will receive the benefit of all existing easements which affect that land, whether they have been expressly or impliedly granted
        
        It has also been interpreted as a method a brand new easement can be implied into a document- this has become a recognised method- known as ‘upgrade method’
        
        Wright v Macadam: Mrs Wright was a tenant in part of Mr Macadam’s house. Mr Macadam gave informal permission for Mrs Wright to use part of the shed on his part of the land to store coal. When the current lease ran out, and a new lease was made to keep Mrs Wright there, the new lease did not mention the use of the shed. Mr Macadam then tried to charge Mrs Wright to use the shed, which she claimed she had an easement to which she could exercise without payment. Court found in her favour and stated under LPA1925 S62 the informal right was implied into the new lease as a full legal easement
        
        requirements to use 'upgrade effect'
        
        Applies only where right being claimed would have been a grant to the claimant
        
        There must have been prior diversity of occupation of the dominant and servient land
        
        P&S Platt v Crouch- states requirement for prior diversity of occupation of the dominant and servient land is not necessary where the right is continuous and apparent (widening the scope)
        
        The new scope has the effect of being able to use this rule in Wheeldon v Burrows situations (where land is being divided for the first time), but is easier as has less requirements i.e. not necessary to show the right enhances the land in some way
        
        2 more items...
        
        An informal permission of license must have been granted to the occupier of the dominant tenement to use the servient land in some way
        
        There must be a conveyance (transfer/lease) of the dominant tenement
        
        How they work: Last three requirements are sequential: must firstly have been prior diversity of two pieces of land meaning part of the land is leased/divided by transfer. Following this division, an informal permission is granted. At this point, the right is just a license. If then a subsequent conveyance of dominant land is done, the informal permission is upgraded to an easement and implied into the conveyance
        
        Where there is prior diversity of occupation e.g. landlord and tenant situations like in Wright v Macadam. Easement is then implied when the lease has expired and land is re-let to the same tenant, or different tenant, or even sold.
        
        Applies to quasi-easement situations like platt and crouch to imply the easement into the first lease or transfer deed. Right must be continuous and apparent (exercised recently and regularly and some physical evidence of the exercise of right e.g. track, right of way, manhole over drain)
        
        LPA 1925 S62 is excluded as a matter of routine in property deals to avoid unintended consequences
      - by prescription