Easements

Question 1

St Edmundsbury v Clark

Answer 1

Courts will construe reservations strictly against landowner - had the right to reserve what they wanted and are assumed to have done so

Question 2

Attwood v Bovis Homes

Answer 2

If burden has substantially changed, the increased use of easement cannot be claimed
Right to drainage and utilities through defined channels

Question 3

Re Ellensborough Park

Answer 3

Test for capability of being an easement:

1) Must be dominant and servient tenement (identifiable piece of land)
2) Must accommodate the dominant tenement
3) No common ownership
4) Must lie in grant

Question 4

London & Blenheim Estates v Ladbroke

Answer 4

There must be land for the benefit of which the easement exists and one which is burdened by its exercise
Right to park

Question 5

Hawkins v Rutter

Answer 5

Easement cannot exist in gross - not exercisable independent of interest in the land

Question 6

P&A Swift Insurance v Combined English Stores

Answer 6

Does the easement affect the value, convenience or amenity of land?
Must be more than merely personal benefit

Question 7

Hill v Tupper

Answer 7

Right which facilitates business but is not sufficiently connected with use of land is not capable of being an easement

Question 8

Moody v Steggles

Answer 8

Right which is sufficiently connected to use of dominant land can be an easement if inextricably connected with use of land

Question 9

Pugh v Savage

Answer 9

Need not be adjoining land

Question 10

Bailey v Stephens

Answer 10

Must be proximity to establish that the dominant land actually derives benefit

Question 11

Roe v Siddons

Answer 11

Dominant and servient lands must be owned and occupied by two separate parties

Question 12

William Aldred’s Case

Answer 12

Nature and extent must be capable of reasonably exact description

Question 13

Bland v Mosely

Answer 13

Cannot claim right to a view - too ambiguous

Question 14

Browne v Flower

Answer 14

Cannot claim right to privacy - too vague

Question 15

Harris v De Pinna

Answer 15

No easement to flow of light through undefined channels

Question 16

Borman v Griffiths

Answer 16

Right of way

Question 17

Colls v Home & Colonial Stores

Answer 17

Right of light (specific window receives certain amount)

Question 18

Race v Ward

Answer 18

Right to water through defined channel

Question 19

Wong v Beaumont Property Trust

Answer 19

Right to air in defined channel

Question 20

Dalton v Angus

Answer 20

Right to support

Question 21

Regency Villas v Diamond Resorts

Answer 21

Right to use facilities

Question 22

Dyce v Lady James Hay

Answer 22

Courts are willing to accept new positive easements to accommodate new social and technological changes

Question 23

Wright v Macadam

Answer 23

Right of storage

Effect of s62 LPA 1925 - renewal of lease/sale, informal permission becomes full easement implied into new lease

Question 24

Phipps v Pears

Answer 24

Right to protection from weather claimed by analogy to easement of support - courts are unwilling to recognise new negative easement

Question 25

Hunter v Canary Wharf

Answer 25

Cannot claim right to TV signal - should have done so via restrictive covenant

Question 26

Regis Property v Redman

Answer 26

Claim to supply of hot water was not an easement as it incurred additional expense on servient landowner

Question 27

Jones v Pritchard

Answer 27

Servient landowner is not obliged to do or spend anything
Not under any obligation to repair, but must allow dominant landowner to enter servient tenement to effect repairs at his own expense

Question 28

Rance v Elvin

Answer 28

Easement to allow passage of water was allowed, subject to quasi-contractual obligation for dominant landowner to pay for his share

Question 29

Green v Ashco Horticulturalists

Answer 29

Must be exercisable as of right and not dependent on permission every time
s62 operates where there is casual permission to exercise right permanently

Question 30

Grigsby v Melville

Answer 30

Right to use whole cellar was not an easement - amounted to exclusive use

Question 31

Batchelor v Marlow

Answer 31

‘Ouster principle’ - is the servient owner left with any reasonable use of his land? - easement to park 9-5 on business days amounted to significant possession

Question 32

Moncrieff v Jameson

Answer 32

Scottish case (persuasive only) - ‘does the servient owner retain possession and control of the land’ - could do anything but interfere with claimant’s parking rights

Question 33

Kettel & Ors v Bloomfold

Answer 33

Confirmed Batchelor v Marlow (not overruled) - claimant’s right to use designated parking spaces was as he retained reasonable use of the spaces

Question 34

Pryce v McGuinness

Answer 34

Utilities will not be implemented by necessity

Question 35

Manjang v Drammeh

Answer 35

If there is another access route, no matter how inconvenient, the easement will not be implied via necessity

Question 36

Pwllback Colliery v Woodman

Answer 36

To be implied by common intention the property must be used in a definite and particular manner and the easement is necessary for that

Question 37

Wong v Beaumont Property

Answer 37

Right to ventilation implied by common intention - property let as a restaurant

Question 38

Re Webb’s Lease

Answer 38

High onus of proof on someone claiming an implied common intention
Not satisfactory that the right had been openly exercised prior to the transaction

Question 39

Peckham v Ellison

Answer 39

Reserved through common intention - facts must be consistent with any other explanation than common intention

Question 40

Wheeldon v Burrows

Answer 40

On sale or lease of part of land, grantee will receive all quasi-easements which are

1) Continuous and apparent
2) Used regularly to be a clear and objective feature of the land
3) Apparent upon reasonable inspection
4) Necessary for reasonable enjoyment of that land and used at time of transfer

Question 41

Pyer v Carter

Answer 41

Can include underground easement if it would be apparent to someone familiar with the subject (e.g. surveyor)

Question 42

Constagliola v English

Answer 42

Where the common owner hadn’t actively used their right for a few months, but has generally used it in the past, it was still held to be in use by the owner

Question 43

Wheeler v Saunders

Answer 43

If there is alternative and equally adequate access to land then right of way is not necessary to reasonable enjoyment of that lanf

Question 44

Millman v Ellis

Answer 44

If right of way is significantly more convenient, then it will be held to be necessary to the reasonable enjoyment of that land

Question 45

Kent v Kavanagh

Answer 45

Only operates upon sale/lease where immediately before there was a common owner and occupier of the whole

Question 46

P&S Platt Limited v Crouch

Answer 46

No need for diversity of occupation to imply easements under s62

Question 47

Williams v Sandy Lane

Answer 47

30 years’ non-use and overgrowth of right of way did not make the way impassable - not sufficient to demonstrate intention to abandon

Question 48

Swan v Sinclair

Answer 48

Right of way had not been used for 50 years and was blocked by fences - abandoned

Question 49

Regan v Paul Properties

Answer 49

Injunction unlikely to be justified where infringement is only trivial or temporary/overly oppressive/can be compensated by damages