easements Flashcards
(41 cards)
1
Q
what is an easement and what types of easements are there
A
- right granted to an individual for the benefit of their land, allowing them to use or restrict the use of another’s land in a specific way
- negative and positive
2
Q
characteristics of an easement
A
- Re Ellenborough Park
a. There must be two pieces of land: a dominant tenement (benefited by the easement) and a servient tenement (burdened by the easement). The person asserting the right must own the dominant land.
b. The easement must benefit the dominant tenement.
c. The dominant and servient owners must be different people.
d. The right claimed must be capable of forming the subject of a grant.
3
Q
section 33 definitions
A
o Dominant Land: Land benefited by an easement or profit à prendre, or land in respect of which a relevant user period has commenced.
o Dominant Owner: The owner of the dominant land, including predecessors and successors in title.
o Foreshore: As defined in section 2(1) of the Act of 1957.
o Interruption: Interference with the use or enjoyment of an easement or profit à prendre for at least one year, excluding interruptions under section 37(1).
o Period of Non-User: The time during which the dominant owner stops using or enjoying the easement or profit à prendre.
o Relevant User Period: The period of use without interruption:
12 years if the servient owner is not a State authority.
30 years if the servient owner is a State authority.
60 years if the servient land is foreshore.
- Servient Land: Land burdened by an easement or profit à prendre, or land in respect of which a relevant user period has commenced.
- Servient Owner: The owner of the servient land, including predecessors and successors in title.
- State Authority: A Minister of the Government or the Commissioners of Public Works in Ireland.
- User As of Right: Use without force, secrecy, or the consent of the servient owner.
- De Londras – an easement cannot overly infringe on the servient owners rights.
4
Q
dominant and servient tenaments
A
- easement is a right attached to the land, not person
- Alfred F. Beckett Ltd v Lyons - no one can possess an easement without it being linked to and enhancing their enjoyment of a specific estate or interest in the land
- Latimer v Official Cooperative Society
5
Q
easement must accommodate the dominant tenement
A
- Hill v Tupper - the boat case - the easement must benefit the land, not the individual
- Re Ellenborough Park - the park case
6
Q
natural rights
A
- exist automatically
7
Q
public rights
A
- can be used by anyone
8
Q
validity of easements
A
Re Ellenborough Park - three questions answered in negative:
1. Is the right conferred to wide or to vague?
2. Is the right inconsidtent with the proprietorship or possession of the alleged servient owners?
3. Is it a mere recreational right with no utility or benefit?
9
Q
is the right conferred to wide or too vague?
A
- Ackroyd v Smith - ‘for all purposed’ - too broad to be an easement
- Gaw v CIE - the benefit of a repair covenant can pass with a right of way if it touches and concerns the land and the claimant has an independent interest in it.
10
Q
It is a mere recreational right with no utility or benefit?
A
- Mousney v Ismay – an easement must be a right of benefit and utility and not one of recreation and amusement – this was has not been considered in Ireland.
- an easement will not be recognised if it requires the servient owner to incur expenditure, as shown in Regis Property Co Ltd v Redman, where a claim to a heated water supply failed.
10
Q
Is the right inconsidtent with the proprietorship or possession of the alleged servient owners?
A
- cannot be an easement if it interferes with the enjoyment of land
- Copeland v Greenhalf - the defendant claimed an easement to park and leave vehicles indefinitely on an undefined strip of land subject to a right of way, relying on over 50 years of use. The court held that the right claimed was too broad to qualify as an easement.
o Upjohn J. stated that it amounted to a claim of possession, or at least joint use, of the servient land, which is inconsistent with the nature of an easement and cannot be its proper subject-matter.
11
Q
right of way
A
- The right to cross and re-cross property between two clearly defined points and it is not a eight to wander randomly across someone’s property (by foot only, does not automatically carry with the right to use vehicles)
o Bulstrode v Lambert – if there is a vehicular right of way, sometimes it includes the right to park for the time necessary and load and upload vehicles. - Restrictions can include restrictions on when the light can be used and the mode of use.
12
Q
right to light
A
entitlement of a property to receive light
- Colls v Home and Colonial Stores Ltd – HoL decided that in order for depravation of the easement of light to give rise to an action, the extent of its diminution had to be actionable as a nuisance.
- Scott v Goulding Properties – plaintiff bought a mews property in Dublin in 1959, converted it for residential use, and installed ground-floor windows. The defendant later built a 124-foot-high structure blocking plaintiff’s ancient lights.
o The SC ruled that plaintiff was entitled to compensation only for the obstruction of his ancient lights.
13
Q
right of support
A
- The easement of support ensures one building supports another, especially in semi-detached or terraced houses, protecting their structural integrity.
- Todd v Cinelli & Others
14
Q
right to protection from the weather
A
- Treacy v Dublin Corporation – the High Court granted an injunction to prevent the demolition of a house without ensuring proper support and protection for neighboring properties. The defendants appealed, referencing Phipps v Pears (1965), where Lord Denning cautioned against expanding negative easements that could hinder legitimate land development.
o While the Supreme Court agreed with the principles in Phipps, it upheld the injunction. This case creates some uncertainty about the extent to which remedies can be granted for negative easements, particularly concerning protection from wind and weather.
15
Q
The acquisiton of an easement pre 2009
A
could be acquired in four ways:
Statute; (2) Express Grant or Reservation; (3) Implied Grant or Reservation; and (4) Prescription (by common law, lost modern grant, or statute).
Importantly, it’s not enough to meet the characteristics of an easement—you must also show it was properly acquired.
16
Q
post 2009 - the need for a grant
A
- Apart from statutory easements, easements can only be created by a grant—either express, implied, or presumed.
- Dublin County Council v Westlink Tol Bridge Ltd – statutory easements don’t have to meet the usual rules, like needing a dominant tenement.
17
Q
statute
A
- Statutes dealing with services like gas, water, and electricity usually allow easements to be created in favour of the service provider, following procedures set out in the law (e.g., NAMA Act 2009, s.170).
18
Q
express grant
A
- Where a vendor sells part of their land and keeps adjoining land, they often expressly grant an easement over the retained land to the purchaser.
- Johnstone v Holdway – it’s best to clearly name the dominant tenement, but if not, the court will look at all the circumstances to figure it out.
- McManus v Cooke – If a grant doesn’t meet the formal requirements for a legal easement, it can still create an equitable easement if given for value and evidenced in writing or part performance. Equity will enforce it and prevent denial
19
Q
Express reservation
A
there are two methods to create an easement by reservation:
1. Grant and Regrant: The purchaser receives the land and then regrants the easement back to the vendor in the same conveyance. The conveyance does two things: it transfers ownership to the purchaser and then grants the easement back to the vendor. Any doubts about the extent of the easement will be resolved against the purchaser.
2. The Use: The vendor conveys the land with the condition that the purchaser will take it subject to the vendor’s easement. The Statute of Uses then executes this condition, so the purchaser holds legal and beneficial title to the land but subject to the vendor’s easement.
- Section 69(1) of the 2009 Act simplifies the creation of easements by reservation, allowing the easement to automatically vest in the grantor (or a beneficiary) without the need for the grantee to execute a regrant.
20
Q
implied grant
A
- Implied easements arise when parties sell or lease part of their land, with the law inferring the existence of an easement based on the intention of the parties. If there is evidence that no easement was intended, this can rebut the inference. There are five main ways implied easements can arise:
1. Easements of Necessity
2. Non-derogation from a Grant
3. Easements by Common Intention
4. The Rule in Wheeldon v. Burrows
5. Section 6, Conveyancing Act 1881
21
Q
- Easements of Necessity
A
- An easement of necessity arises when land is conveyed in a way that makes it impossible to use or enjoy the retained land without an easement over the sold land.
- Nickerson v Baraclough – the doctrine of easements of necessity is based on the implied intention of the parties. However, no easement will arise if the parties explicitly exclude such an implication.
- Wong v Beaumont Property Trust Ltd – In this case, the basement was leased for use as a Chinese restaurant, but public health regulations required the kitchens to be vented to the roof. The court held that there was an easement of necessity to install a ventilation duct through the landlord’s retained upstairs floors.
22
Q
- Non-derogation from a Grant
A
- A grantor cannot give and then take away. To determine derogation from grant, two tests must be met:
1. The land acquired must be materially less fit for its intended use – Connell v. O’Malley
2. The grantor must have known or reasonably anticipated that their actions would cause this result, based on actual or imputed knowledge – Harmer v. Jumbil - Connell v O’Malley
23
Q
- Easements by Common Intention
A
- If both the vendor and purchaser intend for the land to be used in a particular way, and this use is only possible with a specific easement, the easement will be implied.
- Latimer v Official Co-operative Society – the sale of one of two semi-detached houses implied an easement of support for the house sold, even though the house could be used without the easement as long as the other house remained standing.
24
24
4. The Rule in Wheeldon v. Burrows
- The Rule in Wheeldon v Burrows has been replaced by Section 40(2) of the 2009 Act. This rule previously implied an easement based on existing use when:
1. A single tract of land was divided,
2. There was an apparent and continuous use of the "servient" part,
3. The use was reasonably necessary for the enjoyment of the "dominant" part,
4. The court found that the parties intended the use to continue after the division of the land.
- Section 40(2) of the 2009 Act provides for implied easements that are necessary for the reasonable enjoyment of the land disposed of, and which the parties would reasonably have assumed to be included at the time of the disposition.
- Subsection (3) clarifies that Section 40 does not affect easements arising by implication as easements of necessity, to give effect to the common intention of the parties, or under the doctrine of non-derogation from grant.
25
5. Section 6, Conveyancing Act 1881
- Section 6 of the Conveyancing Act 1881 eliminates the need for explicit mention of pre-existing easements in property conveyances. If an easement exists at the time of conveyance, it will automatically pass with the land, without the need for express words in the deed (can be excluded by a contrary intention)
- Section 6(1) – a conveyance of land includes all rights, privileges, and easements related to the land, whether occupied or enjoyed with it, or regarded as part of it at the time of the conveyance.
- Section 6 can create new easements if there was prior diversity of ownership. The grantor must have the power to create the easement, and the right must be capable of becoming an easement.
o Goldberg v Edwards – a tenant's permissive right to use secondary access was elevated to an easement once the lease was signed.
26
William Bennett Case
- William Bennett Construction Ltd v Greene & Another – the defendants sold land with planning permission for 18 houses but retained part of the land where a sewage drain was intended to run. After the sale, the plaintiffs discovered that the defendants would not allow the drain to pass over their land, leading to a claim for an easement.
o The High Court ruled:
There was no agreement allowing the sewage drain to pass over the retained land.
The planning permission inclusion did not imply a condition for the defendants to grant the easement.
The defendants did not derogate from their grant by refusing the easement.
o CoA:
The land was sold for a specific purpose known to both parties, and it would have been prohibitively expensive for the appellants to place the sewage drain elsewhere. By refusing to allow the drain in its original location, the defendants were derogating from their grant, referencing Connell v O'Malley.
The appellants had a "way leave" under Section 6 of the Conveyancing Act 1881, granting them permission to place the sewage drain on the defendants' land.
The doctrine of promissory estoppel prevented the defendants from denying the appellants' right to place the drain on their land, based on prior representations.
o Supreme Court: In Connell v. O'Malley, the principle of non-derogation from a grant, specifically in relation to easements and profits, was established. However, that case involved a defined right of way existing at the time of the grant.
In contrast, the rule in Wheeldon v. Burrows applies only where the easement was in use at the time of the grant by the grantor for the benefit of the property granted over the property retained.
In this case, no such easement existed, as the defendants had never used any part of their land for sewage disposal by means of a pipe connected to the main sewers. Therefore, the doctrine of derogation from grant was not applicable.
o Section 6 ensures that existing easements pass with the land on conveyance, but outline planning permission is not an easement. It is governed by Section 28(5) of the Local Government (Planning and Development) Act 1963.
o The promissory estoppel claim fails, as there was no promise or reliance on a belief to the appellant’s detriment.
27
replacement of section 6
- Section 71 of the Land and Conveyancing Law Reform Act 2009
28
Development (intensification) of Implied Easements
- McAdams Homes Limited v Robinson & Another – the Court of Appeal addressed the effect of a radical change in the user of the dominant tenement on the validity and extent of an implied easement.
o Facts: A bakery built in 1949 used a drain connected to Whyte Cottage. In 1982, the right to discharge water passed under Wheeldon v Burrows. After the bakery ceased in 1986, planning permission in 2000 allowed two houses to be built. McAdams, the developer, intended to use the same drainage system. The Robinsons blocked the pipe, claiming the easement ended due to the radical change in the dominant tenement’s use.
1. A substantial increase in the intensity of use of the easement cannot be objected to by the servient owner if the dominant land’s use at the time the easement was created was specific.
2. Excessive use of an easement, causing nuisance (e.g., flooding), can lead to liability. The nature of excessive use depends on the original grant and the capacity of the system.
3. A radical change in the use of the dominant land does not affect the right to use the easement if the manner or extent of use remains unchanged (e.g., Lutrell’s Case)
4. However, if the change in use results in a substantial increase or alteration in the easement’s use: a. If the change represents a "radical change in character" or "identity" of the land (e.g., Wimbledon and Putney), and b. If the redevelopment substantially increases the burden on the servient land (e.g., Harvey v Walton), then the easement does not extend to accommodate the new use.
29
Presumed grant / prescription - pre 2009
- Prescription is the common law equivalent of adverse possession for easements and has been reformed by the 2009 Act. It involves long, continuous, open, and adverse use, leading the law to presume a grant, even though no actual grant exists. The rules are judge-made but modified by statute.
- General requirements are: open and notorious, adverse, continuous and uninterrupted (Orwell Park Management Ltd v Henihan), and for the statutory period.
- Enjoyment of an easement as of right must be nec vi, nec clam, nec precario—that is, without force (with the servient owner's acquiescence), without secrecy (the owner must be aware), and without permission.
30
1. common law prescription
- If use (plus the above conditions) can be shown since time immemorial, fixed at 1189, the courts will presume an easement exists. Since proving use from 1189 is difficult, long use for 20 years is generally accepted instead, leading to the development of alternative methods.
31
2. Lost modern grant
- To address the difficulties with proving common law prescription, courts developed the fiction of a lost modern grant. Where an easement has been used openly and continuously for at least 20 years, but not since time immemorial, the law presumes that a formal grant once existed but has since been lost. This presumption cannot be rebutted by proving no grant was made.
- Orwell Park Management Ltd. v. Henihan – the court found that long-term vehicular access between 1937 and 1972 gave rise to a lost modern grant.
32
3. Statute
- The Prescription Act 1832 offered an alternative to common law prescription and the fiction of a lost modern grant. It introduced fixed periods of use: 20 years for an easement to be presumed, and 40 years for it to become absolute. It also made special provision for rights of light.
i. Shorter period
- Under the Prescription Act 1832, if an easement is enjoyed openly and without interruption for 20 years up to the time of a claim, it is presumed to have been granted. However, the claim can be defeated by proving interruption, failure to meet the Re Ellenborough criteria, objection by the servient owner, secret use, or permissive use (i.e., by licence or consent).
ii. Longer period
- For the longer period under the Prescription Act 1832, 40 years of continuous, uninterrupted use before a claim makes the right to an easement or profit "absolute and indefeasible," unless the use was based on written consent.
33
Reform of Prescription
- The 2009 Act simplifies the methods of establishing the existence of an easement, other than through express grant. Section 38 includes transitional provisions, stating that:
Sections 34 to 37 apply to claims based on a relevant user period, even if the user period started before the Act's commencement.
These sections do not apply to claims based on user periods under the old law if the action is brought within 3 years of the Act's commencement.
- Section 38 (Amended by the Civil Law (Miscellaneous Provisions) Act 2011) – Claims for easements can now be made within 12 years, instead of the previously set 3 years.
- Section 34 – abolishes the acquisition of easements by prescription at common law or under the doctrine of the lost modern grant.
- Section 35 – establishes a single statutory method for acquiring easements: the claimant must register a court order in the Land Registry or Registry of Deeds. To obtain a court order, the claimant must prove sufficient user as of right for the required period prior to the application. Amended by the Civil Law (Miscellaneous Provisions) Act 2011 to allow easements to be registered under section 49A of the Registration of Title Act 1964 if the claimant meets the requirements of sections 33-38 of the 2009 Act.
- Prescription Periods – 30 years for State authority servient land. 60 years for foreshore servient land. 12 years for all other cases. Aligns prescription periods with limitation periods in the Statute of Limitations.
- Section 33 – defines "user as of right" as use without force, secrecy, or consent from the servient owner. An interruption to the user will only defeat a claim if it lasts for at least one continuous year.
34
Easement by estoppel
- Estoppel prevents someone from denying a representation or belief they induced in another, which led the other party to act to their detriment. In equity, an easement may be recognized as a remedy to estoppel if it is the appropriate means to satisfy the equity in the person’s favor.
- Crabb v Arun DC – the court emphasized that estoppel depends on the circumstances. The defendant council had given the plaintiff an assurance at a meeting that an access point could be used, even placing gates at the point. The court found that it was too late for the defendant to claim the plaintiff should have consulted them first, raising an equity in the plaintiff's favor.
- Dunne v Molloy – the plaintiff tried to assert a right of way over the defendant’s land based on estoppel by conduct, after failing to prove the right through prescription or lost modern grant. Gannon J. dismissed the claim, ruling that the plaintiff had not shown that the defendants had encouraged him to act to his detriment.
35
Discharge and modification of easements - statute
- Section 39 of the 2009 Act introduces a general statutory extinguishment for easements and profits acquired by prescription or implied grant or reservation. Under this section, such easements or profits will be extinguished after 12 years of continuous non-user, unless protected by registration in the Registry of Deeds or Land Registry. This applies to easements acquired both before and after the commencement of the 2009 Act, covering periods of non-user that began before the Act.
- However, the Act preserves the court's existing power to declare an easement abandoned or extinguished based on the dominant owner's conduct under section 39(3). This jurisdiction also extends to easements acquired expressly, known as implied release (see Abandonment).
36
Release
- An easement can be discharged by private act through release, which may be either express or implied. For an express release to take effect at law, it must be made by deed. However, under general equitable principles, a specifically enforceable agreement to release an easement will operate as a release in equity.
37
Abandonment
- An implied release occurs when the dominant owner abandons the easement with the intention of permanently giving it up. A long period of non-use alone is not enough to prove abandonment.
- O'Gara v Murphy – factors suggesting abandonment of a right of way included: (a) using the area for a vegetable garden, (b) filling in a gap in the wall previously used for access, and (c) creating a new access route.
38
Unity of possession and title
- An easement or profit is automatically extinguished when the dominant and servient tenements are in common ownership and occupation. However, if there is a union of the fee simple estates but no unity of possession (e.g., one tenement is leased), the easement is not extinguished. Similarly, if there is unity of possession but no unity of fee simple title, the easement is suspended, not extinguished.
39
Easments and profits in registered land
- Easement rules apply to registered land with some modifications. The benefit of an easement appurtenant to registered land can be recorded on the folio of the dominant tenement (s 82 of the Registration of Title Act 1964), and this entry is conclusive evidence of the right (s 31 of the 1964 Act).
- Easements, unless created by express grant or reservation after the first registration, are considered overriding interests, affecting the servient tenement without registration (s 72 of the 1964 Act). However, easements created by express grant or reservation after first registration must be registered as burdens against the servient tenement (s 69 of the 1964 Act).
