Easements Flashcards
(16 cards)
Hill v Tupper?
No easement, would only Dominant land benefit business not land. does not accomodate (benefit D land). Argued that P did not have exclusive rights to canal. P argued that their right amounted to profit a prendre - court disagreed.
What is the right to roam? Also Darwall v Dartmoor National Park Authority.
Right to roam is a public right of access to certain lands for recreational purposes like walking, hiking, or picnicking, even if the land is privately owned.
Wild camping falls within the scope of “open-air recreation” as intended by the 1985 Act.
Moody v Steggles?
Cs, the owners of a pub, claimed the right to affix a sign on the wall of D’s house. A right that benefits the business carried on the dominant land can be a valid easement if benefits business and land.
Macepark (Whittlebury) Ltd v Sargeant (No 2)?
Easement could not be used to benefit non-dominant land
Capable of forming subject matter of grant?
no negative burden on S owner
caution in recognising new easements
certainty in scope of a grant.
ouster principle.
no negative burden on S owner?
An easement cannot require the servient owner to take positive action (like maintenance or repair).
Phipps v Pears – Homeowner claimed a right to be protected from the weather because the adjacent building had shielded his wall. The court rejected- would impose an positive obligation to maintain the adjacent structure.
Caution in recognising new easements
Hunter v Canary Wharf [1997] – No easement for TV reception was recognised; the court was reluctant to invent a novel easement not grounded in precedent.
Certainty in scope of a grant?
The easement must be sufficiently clear and specific — vague or ill-defined rights won’t qualify. Copeland v Greenhalf [1952] – A claimed right to store unlimited vehicles on someone else’s land was rejected. It was too broad and vague — it lacked definable limits and effectively excluded the servient owner.
Ouster principle?
London v blenheim: interference with S owner reasonable enjoyment
Moncrieff v Jameson: deprive S owner of control or possession?
Regency Villas: applied moncrieff test, both good law.
Acquisition of express easement
Legal - deed, registration
equitable - signed, in writing, DoA
acquisition of implied easement - s62 LPA upgrades if:
1) must be grant, not reservation
2) subdivision of land: must be a conveyance of part of a larger parcel of land.
3) prior use: relevant right (e.g., path, parking, drainage) must have been used before the conveyance — it’s that use that gets transformed (Wright v Macadam)
4) diversity of occupation: Where the buyer/tenant already occupied part of the land before the conveyance — even informally — and used the right during that time.
OR continuous and apparent: not occasional or temporary, visible signs of use (e.g., a worn path, pipes, gate).
5) capable of forming an easement.
s62(1) acquisition of implied easement:
Section 62(1) automatically passes rights, privileges, and advantages that were enjoyed with the land to the new owner or tenant on conveyance (i.e. sale or lease), unless expressly excluded.
How did wood v waddington clarify s62?
Prior to this case, many assumed diversity of occupation (i.e., separate occupation of dominant and servient parts before sale) was required.
The Court of Appeal clarified: NO, as long as the use is:
Continuous
Apparent
Capable of being an easement
What does Wheelon v Burrows do?
Generally covered by s62.
On the sale of part of land, the buyer automatically gets the benefit of certain quasi-easements that were:
Used by the seller,
For the benefit of the part sold,
At the time of the sale,
And the rights must be:
- Continuous and apparent, or
- Necessary for the reasonable enjoyment of the land sold.
implied easements by neccessity?
Manjang v Drammeh [1990]
Land had no road access, but there was a river route.
Court: no easement of necessity because access by water was possible.
must be absolute neccessity. physically impossible, not just inconvenient.
prescriptive easments?
Use must be “as of right”
Use must be continuous and uninterrupted
20 years
The use must be without force, without secrecy, and without permission
