Easements Flashcards
What is an easement?
A right of way, allowing one person to cross over or otherwise interact with another’s land or property.
They are proprietary, giving people rights in rem.
Re Ellenborough Park - 4 criteria for content of an easement
Did homeowners have an easement to a park?
- Must be a dominant and servient land
- Dominant and servient land must be owned by different people
- Easement must accomodate the dominant land
- Right must be capable of forming the subject matter of a grant.
Criteria 1: Dominant and servient land + how close?
Servient land: Serves the other person (land being passed through)
Dominant land: The land which benefits from the easement
Need to be sufficiently close - easements in gross not recognised in English law, they are just licenses.
Public easements and profit a prendre - what are these?
Public: Gives you a specific ability to walk across a specific footpath - eg ‘right to roam easement’.
Countryside and Rights of Way Act
Profits are rights to take from someone’s land - eg fishing rights, hunting rights
Criteria 2 from Re Ellenborough Park - D and S land must be owned by two different people
You cannot have an easement with yourself
You can grant an easement to leasehold, but bits of land must be in separate ownership and separate accomodation
Criteria 3 from Re Ellenborough - Easement must accomodate the dominant land - Hill, Re Ellenborough and Regency application
Emphasis on ‘land’
Needs to benefit the dominant land - Hill v Tupper, Moody v Steggles
Some degree of proximity, and enhances enjoyment
Hill v Tupper - Right to sell boats was personal
Re Ellenborough - Right to use park did benefit land
Regency - Pleasure facilities ie pool, tennis court benefitted land although beware of recreational easements unless dominant land has recreational use.
Criteria 4: Right must be capable of forming the subject matter of the grant (part 1) - No negative burden (Phipps + Regency)
Law does not like to recognise easements which require servient owner to do something.
Phipps v Pears - No easement for support, this would restrain neighbour from demolishing their house.
Regency - Servient owners not required to keep property in good repair, BUT, dominant owners have step in rights, so they can do the repairs themselves as long as this doesn’t oust the servient owner.
4 recognised exceptions to the rule on no positive easements
Sunlight in defined channel
Airflow in a defined channel
Flow of water in a defined tunnel
Removing lateral support
Criteria 4: Right must be capable of forming the subject matter of the grant (part 2) - Caution in recognising new easements (Phipps again)
No easement for support or protection from the weather - this would prevent neighbour from demolishing their house.
This would be too great of a restriction - we should show caution when recognising new easements
Criteria 4: Right must be capable of forming the subject matter of the grant (part 3) - Certainty in scope of the grant - Hunter v Canary Wharf
Nature and extent of the burden needs to be made clear - no easement for unrestricted TV signal.
Criteria 4: Right must be capable of forming the subject matter of the grant (part 4) - Cannot amount to ouster (Wright + London Blenheim/Moncrieff Tests)
Wright v Macadam - easement over shed held to be sufficient for an easement
London Blenheim - Does the servient owner still have ‘reasonable use’? Parking easements failed under this.
Moncrieff (Scottish, not binding) - Does the servient owner retain sufficient possession and control (not necessarily use) - so right to park might not be ouster.
Regency - Court showed preference to Moncrieff in obiter, so Blenheim still binding but mention that courts have been more willing to use Moncrieff.
How can an easement be created?
Express easements
Implied
Prescriptive
Express easements - what do they require and why do we have them?
Require a deed (signed)(s52), and registration (s27).
Why do we require registration? Because easements are harder to spot by third parties unless the info is provided.
Protected under sch 3(3) LRA (but also because they need a notice to be entered s38)
Implied easements - 3 types
Easement implied by grant (not reservation)
Easements implied by transfer (via s62)
Easements of necessity
Implied easements 1: Easement by Grant (not reservation)
Law likes easements by grant: Where someone splits land with a right of way, selling one plot to another and granting that person the right of way. The original splitter grants an easement to the new owner.
Law does not like easements by reservation - Where splitter reserves an easement for themself.
Implied easement 2: Implied through transfer (of another right)
I give you a lease, and implied in it you also get an easement (like a package).
Parties haven’t been explicit about an easement but have transferred something (usually a lease, often a freehold).
Primary vehicle is s62
s62(1) LPA - how does it work?
Conveyance of land deemed to include easements appertaining or reputed to appertain to the land or any part thereof, at the time of conveyance.
Standard use is word saving: Not creating an easement, but just helping parties pass it on.
Ie: If there is a regular transfer (ie of a lease), and the parties don’t mention the easement BUT it is obvious that everything in the package deal should have been transferred.
This is the word-saving clause - it retains everything that should be part of the package.
Secondary use:
Used as an upgrade. Where it is unclear there is an easement, and the transfer upgrades it into one.
Upgrades will still be only grants, no reservations
Right must still be capable of existing as an easement (ie diversity, no ouster, no new easements).
Does there need to be diversity of occupation prior to the transfer (so that the burdened party must have known that the right exists since they were already there before the upgrade)? Or can we just rely on continuous and apparent use? This is important to ensure third parties know about the easement, since implied easements aren’t registered.
Generally, law prefers there to be diversity of occupation prior to the conveyance, but Wood v Waddington - if no prior diversity of occupation, examine if use was continuous and apparent.
s62(4) - s62 applies only if a contrary intention not expressed in conveyance
The Wheeldon v Burrows rule
From 1879 - pre-dates registration and the LPA.
On grant of owner, they will pass to the grantee:
Continuous and apparent easements, which are necessary for the reasonable enjoyment of the property, and which have at the time of the grant used by the owner of the entirety for the benefit of the part granted.
Reqs:
- Still only easements by grant (recipient gets the benefit)
- Continuous and apparent easement
- Necessary
- At time of grant, used by owner of entirety for the benefit of that part
Mostly already covered by s62 -HOWEVER Wheeldon might be relevant upon creation/transfer of an equitable interest (since s62 requires a legal conveyance).
Easements implied by necessity - Manjang v Drammeh
Strict approach to necessity.
Eg if property was landlocked and couldn’t access a road, then we would imply an easement to go through.
Prescriptive easements
Recognises long-established de facto use.
Prescription Act 1832 - 40 years
Has to be done without force, objection or secrecy, but does not need permission.
Ending an easement
No natural end-point for an easement, they continue going. Explains reluctance of the law in relation to these easements.
What legal protection do implied easements have (since they are unregistered)
They do not need to be registered under 27(2) to operate.
If a purchaser acquires a registrable disposition for valuable consideration, a person with an implied legal easement will be protected by sch 3(3) LRA as an overriding interest
