Easements
- Created by: suesquena
- Created on: 15-05-17 14:22
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- EASEMENTS
- Characteristic
- Re Ellenborough Park [1956] CH 131
- must be dominant & servient tenement: one parcel of land which is benefitted & other which is burdened
- Dominant Tenement
- land benefiting fromeasement
- Servient Tenement
- land subject to easement
- Dominant Tenement
- easement must accommodate the dominant land
- right enjoyed by dominant tenement must be fufficiently connected with that land
- Re Ellenborough Park 1956
- benefit: insufficient to show that right enhanced the value of dominant tenement
- benefit: person claiming right has to show it connected with normal enjoyment of the property (whether there is connection is question of fact)
- Bailey v Stephens 1862
- Byles J: A right of way over land in Northumberland cannot accommodate land in Kent...
- Re Ellenborough Park 1956
- right enjoyed by dominant tenement must be fufficiently connected with that land
- dominant & servient owners must be different
- dominant & servient tenements must not be owned and occupied by the same person
- possible for one person to own estate in both dominant & servient tenement:
- landlord grants lease of part of property tenant, landlord owns freehold reversion so each concurrently holds an estate in the land comprised in the lease
- E.g. landlord owns block of flats & leases top floor flat to tenant, landlord grants easement to tenant to use stairs to reach flat for term not exceeding lease
- landlord grants lease of part of property tenant, landlord owns freehold reversion so each concurrently holds an estate in the land comprised in the lease
- right over land cannot amount to an easement, unless capable of forming subject matter of a grant
- Right must be capable of being granted by deed, so requires capable grantor and capable grantee
- Re Ellengorough Park
- right must not be too vague or wide to be classed as easement
- Re Ellengorough Park
- Courts restrict number of rights which can exist as easements
- Hunter v Canary Wharf Limited 1997
- Facts
- Cs claimed D's construction interfered with their right to television reception
- Ds argued at common law, can build whatever you want on own land, unfortunate if interferes with neighbour's air light or view
- Held
- no easement for television as imposes too high burden on builder:
- no way of knowing precise effect on television reception
- not limited to possible interference in immediate neighbourhood: an indeterminate number of [claimants], each claiming compensation in a relatively modest amount...
- usually can rely on planning permission procedure to raise objections
- also in instant case issue was temporary due to reconfiguration to new transmitters
- considering distinction in Dalton v Angus (1881) easement of light, air or support different as can be more precisely defined & right may be acquired if enjoyed for a long period (by prescription)
- no easement for television as imposes too high burden on builder:
- Facts
- Hunter v Canary Wharf Limited 1997
- Right to a view cannot be protected by an easement
- Dalton v Angus 1881
- distinction between right to a view & rights to light, air & support
- right to a view imposed a burden on a very large and indefinite area
- Dalton v Angus 1881
- Limitations apply to extent owner of servient land is excluded from using the land himself
- Copeland v Greenhalf 1952
- Facts
- D use part of C's land to store vehicles
- Held
- no valid easement: there was no limit to number of vehicles or period of time each could be stored with effect of excluding C (servient owner)
- Facts
- Copeland v Greenhalf 1952
- Issues arise when use of land seems to exclude owner of land
- London & Bleheim Estates v Ladbroke Retail Parks 1992
- question of degree: right not easements if effect is to leave servient owner without any reasonable use of his land
- Miller v Emcer Products ltd 1956
- exclusion of servient owner is to a greater or lesser degree common feature of many easements
- claim to an easement only rejected if extent of ouster so great as to be incompatible with an easement
- London & Bleheim Estates v Ladbroke Retail Parks 1992
- Distinction can be drawn between positive & negative easements
- Phipps v Pears 1965
- positive easement: gives owner of dominant land right to do something on servient land (such as right of way)
- negative easement: gives owner of dominant land right to prevent owner of servient tenement doing something on servient land (such as right to light)
- in instant case, easement for protection from the weather rejected as would impose unreasonable restriction on the ability to redevelop property
- Phipps v Pears 1965
- Right must be capable of being granted by deed, so requires capable grantor and capable grantee
- must be dominant & servient tenement: one parcel of land which is benefitted & other which is burdened
- Re Ellenborough Park [1956] CH 131
- Key concepts
- easement is an incorporeal hereditament which falls within the definition of land under s.205(1)(ix) Law of Property Act 1925
- easement is a right which makes use of a person's land more convenient or accommodating or beneficial & as a right enjoyed over someone else's land it also imposes a burden
- easements are proprietary rights which may pass with ownership of land
- neighbours may grant licence permitting temporary access to their land but may be revoked & does not pass with ownership
- Rights over land which are neither licenses or easements
- Statutory rights
- utility companies' rights are not acquired in same way as easements but granted by Acts of Parliament
- Public rights
- public enjoy regardless of whether they own any land
- Profit a prendre
- right to take something capable of being owned from someone else's land without having to own the land that benefits from the right,
- known as right in gross
- easement: cannot exist in gross as there must be land capable of deriving benefit from it & only confers mere privilege no profit
- easement: cannot exist in gross as there must be land capable of deriving benefit from it & only confers mere privilege no profit
- Natural right
- to have your land supported by that of your neighbour
- easement: granted by another not natural right
- Restrictive covenant
- agreement between landowners of neighbouring land , where one agrees to restrict his use of the land as an equitable interest
- easement: capable of being legal or equitable
- Statutory rights
- Acquisition
- By express grant or reservation
- easements may be legal interest
- Law of Property Act 1925
- s.1(2)(a): easement is capable of being a legal interest & can be legal only if its duration is equivalent to an estate in fee simple absolute (without a time limit) in possession or a term of years absolute (for limited period)
- Law of Property Act 1925
- to create legal easement owner must: grant a permanent right (equivalent to estate in fee simple absolute) or grant a right for a fixed period (equivalent of term of years absolute)
- easements may be equitable interest: if for uncertain duration or was created by correct formalities (defect of form)
- deed is required to create a legal easement
- Law of Property Act 1925
- s.52(1): interest in land is void for the purpose of conveying or creating a legal estate unless it is made by deed
- Law of Property Act 1925
- if a person is selling part of their land they may wish to reserve certain rights in their favour (reserving an easement)
- to create legal easement over registered land: must comply with registered conveyancing rules
- Land Registration Act 2002
- s.27(1): disposition of a registered estate which is required to be completed by registration does not operate at law until registration
- s.27(2)(d): registration required: express grant or reservation of interest that falls within s.1(2)(a) LPA 1925
- Land Registration Act 2002
- express grant of legal easement requires registration on Property Register & will bind successive owners of servient land
- if legal easement not registered: failure to comply with required formality means pending registration, easement is equitable & will not bind buyer of servient land
- therefore legal easement over registered land right must be:for an estate equivalent to a fee simple absolute in possession or a term of years absolute granted by deed completed by registration
- easements may be legal interest
- By implied grant or reservation on sale of part
- after sale of part of his land seller will have right to exercise over land sold to buyer:
- Easement of necessity
- easements implied due to common intention of buyer & seller at time of sale
- after purchase of part of land, buyer will have right to exercise, over land retained by seller
- easements of necessity
- easements implied due to common intention of buyer & seller at time of sale
- easements created under rule in Wheeldon v Burrows (1879)
- created under s.62 LPA 1925
- implied easement of necessity may be found in relation to business use of premises
- Wong v Beaumont Property Trust 1965
- Facts
- C ran restaurant from basement of building leased from D
- C needs to place a ventilation duct on rear of building at request of local hygiene inspector
- C's lease contains covenants not to cause nuisance, to control & eliminate all food smells & comply relevant food hygiene regulations
- D refuses permission to erect ventilation duct on building
- Held
- lease is for part of building so qualifies as sale of part of land & implied easement capable of applying
- implied easement of necessity: C cannot continue business without easement permitting ventilation duct
- Facts
- Wong v Beaumont Property Trust 1965
- rule providing for implied easement
- if no express provision allows buyer on sale of part to acquire implied easement over retained land of a seller
- Wheeldon v Burrows 1879
- Facts
- T owned 2 pieces of adjacent land: the plot & the workshop.
- workshop windows overlooked the plot & received light over it
- plot was sold to W & T did not expressly reserve right of light for benefit of workshop
- W died & ownership passed to X. T sold workshop to B
- X erected hoarding, blocking light to workshop. B removed the hoarding & X sued for trespass
- T owned 2 pieces of adjacent land: the plot & the workshop.
- Held
- T had not reserved right of access of light, no such right passed to B & X could obstruct light
- rule allowing buyer implied easement of retained land of seller, arises if right was:
- continuous
- apparent
- necessary for reasonable enjoyment of the land
- being used as quasi easement by seller for benefit of part of land being sold, at time of sale
- based on maxim: grantor shall not derogate from his grant
- Facts
- Wheeldon v Burrows 1879
- if no express provision allows buyer on sale of part to acquire implied easement over retained land of a seller
- A owns house & adjoining field, track runs from house across field to lane
- A uses track as shortcut to lane
- A owns & occupies both pieces of land so no easement (right to use track would be capable of being easement if different owner: so is quasi-easement)
- A sells B house but retains field & no express easement granted (for B to have right to use track)
- issue: can B acquire implied easement under rule in Wheeldon v Burrows?
- yes if: previously A used track as quasi-easement & A's use was continuous, apparent & necessary to reasonable enjoyment of house
- issue: can B acquire implied easement under rule in Wheeldon v Burrows?
- A sells B field but retains house
- A should have expressly reserved right of way over track
- if claim of easement of necessity fails, rule under Wheeldon v Burrows will not assist A
- A should have expressly reserved right of way over track
- meaning of continuous & apparent important in establishing whether implied easement exist under rule in Wheeldon v Burrows
- Ward v Kirkland 1967
- continuous & apparent: requires feature on servient land which on is apparent on inspection
- feature must have degree of permanence (eg. drains or path)
- Ward v Kirkland 1967
- after sale of part of his land seller will have right to exercise over land sold to buyer:
- Under s.62 LPA 1925
- easement may be implied under s.62 LPA 1925
- s.62: implies general list of words into conveyance of land (including buildings, fences, hedges)
- s.62 LPA 1925 minimises length of conveyance document as many features are implied
- s.62 LPA 1925 provides for automatic passing of rights of a permanent nature (such as easements) in transfer of land, but has been interpreted to have wider meaning
- Wright v Macadam 1949
- Facts
- T (tenant of part of property) had mere licence to use coal shed; grant of new tenancy to T amounted to transfer of land; therefore s.62 LPA 1925 words were implied
- Held
- right to use coal shed was capable of being an easement & implied inclusion in deed transformed licence into legal easement
- Facts
- Wright v Macadam 1949
- new easement may be created under s.62 LPA 1925:
- on sale of part of freehold or legal lease of part
- if prior to sale of part: dominant land enjoyed benefit of a licence or permission capable of being easement
- generally diversity of occupation at time of sale
- s.62 LPA 1925 capable of converting privileges allowed under initial part sale of land into easements (with no requirement for right to be continuous & apparent or necessary for reasonable enjoyment of the part)
- Goldberg v Edwards 1950
- a privilege which was not necessary to reasonable enjoyment of the land converted to implied easement under s.62 LPA 1925 on second lease
- Goldberg v Edwards 1950
- easement may be implied under s.62 LPA 1925
- By prescription
- easement may be acquired by prescription: without express or implied grant & no need for sale of part
- A owns land with house on it, adjoining B's field
- A uses track cutting across B's field to access house (as shortcut)
- A has used track for many years, B has not given permission but has not prevented use
- prescription may allow A to claim an easement
- easement by prescription requires satisfaction of common law conditions
- Mills v Silver 1991
- Facts
- only vehicle access to Ds hill farm was by track across C's adjoining farm
- 1922 - 1981 occupier of hill farm used track openly (on occasions when dry enough to be passable); Cs predecessors knew of track use but gave no express permission
- 1981 - 1985 very little use was made of track
- 1987 Ds engaged B to lay stone road along track to make it usable in all weather conditions
- C sought injunction to prevent Ds using track & damages for trespass against Ds & B
- only vehicle access to Ds hill farm was by track across C's adjoining farm
- Held
- first instance judge: found in favour of C, no easement acquiredCourt of Appeal: Ds had vehicular right of way by lost modern grant, but only entitled to repair track not improve
- to acquire easement by prescription, person claiming right must show acts or use on which reliance is placed satisfy three requirements; if three requirements exist user is as of right
- without force (nec vi): no objection raised by servient owner
- without secrecy (nec clam): possible for servient owner to discover & user must be exercised openly
- without permission (nec precario)
- Parker LJ: use must be such as to bring home to the mind of a reasonable person that a continuous right of enjoyment is being asserted
- servient owner must take action to prevent use becoming easement acquired by prescription
- Facts
- Mills v Silver 1991
- user as of right must also satisfy two more common law conditions:
- must be fee simple owner against a fee simple owner
- use must be continuous for requisite period of time
- to claim right by prescription at common law: must show right enjoyed for time immemorial (since 1189)
- to overcome issues proving requisite period: presumption introduced doctrine of lost modern grant (if exercised for more than 20 years right must have originated by grant & deed containing grant lost)
- there is also statutory provision for acquiring easement by prescription
- Prescription Act 1832
- s.2: common law claim to easement by prescription prevented from being defeated if easement has been enjoyed without interruption for 20 yrs
- but not prevent easement being prevented in another way
- right enjoyed for 40yrs: absolute & indefeasible unless shown enjoyment depends on express written consent
- s.4: requires 20 or 40 yr periods to be next before some suit or action
- any interruption to right is ignored unless person claiming right allows it continue once aware of interruption & person responsible for it
- s.2: common law claim to easement by prescription prevented from being defeated if easement has been enjoyed without interruption for 20 yrs
- Prescription Act 1832
- three methods of easement by prescription:
- common law: user from time immemorial (difficulty in showing use since 1189)
- doctrine of lost modern grants: enjoyed right for more than 20 yrs
- PA 1832: use for at least 20 yrs immediately prior to court action
- separate statutory provision for acquiring easement of right to light
- Prescription act 1832
- s.3: right to light enjoyed without interruption for 20 yrs & without written consent becomes absolute & indefeasible
- under s.3 PA 1832 user does not have to be as of right (without force, secrecy & permission)
- Prescription act 1832
- there is no statutory guidance as to amount of light dominant land entitled to
- City of London Breweryv Tennant 1873
- entitlement to: sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment... or for the beneficial use and occupation of [the building]
- City of London Breweryv Tennant 1873
- amount of light required determined on facts, taking account of extent of burden on servient land
- easements acquired by prescription: are implied into as deed & legal easements
- By express grant or reservation
- Protection of easements
- expressly created legal easement: must be completed by registration (s.27(2)(d) LRA 2002) to become legal easement
- if not legal easement buyer will take free from it (s.29 LRA 2002)
- Sch.3 para.3 LRA 2002 does not protect expressly created legal easement which has not been registered
- implied easement of necessity arising on sale part: not legal easement & not express grant so no need to register & will be overriding interest under Sch.3 para.3 LRA 2002 if:
- obvious to buyer on reasonably careful inspection of land
- buyer knew of it
- user can prove exercised right in yr prior to sale
- easement by prescription also overriding interest under Sch.3 para.3 LRA 2002
- Extinguishing easements
- easement may be expressly released by deed
- if dominant land owner purchases servient land, easements will cease
- easements may also be abandoned
- Moore v Rawson 1824
- Facts
- house on C's land benefitted from a right of light (from D's land) to certain windows on one wall of house; C's predecessor took down wall & replaced without windows
- 14 yrs later D built wall facing C's then windowless wall
- 3 yrs later again C put windows in wall of house (as originally there) & claimed D's wall interfered with light
- Held
- C's predecessor, by erecting windowless wall, had extinguished right to light; if there had been indication of intent to put in windows within reasonable time, may been sufficient to preserve right
- in instant case, strong indication (17 yrs passing) that right was abandoned
- Facts
- Moore v Rawson 1824
- Characteristic
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