Easements

Question 1

Incorporeal hereditament

Answer 1

A proprietary interest that is intangible, heritable, and alienable. (Connected to a piece of land, but does not carry with it a right to possess that land for any period of time.)

Question 2

What are easements?

Answer 2

Rights over one parcel of land (the servient tenement) which endure for the benefit of neighbouring land (the dominant tenement).

Question 3

Profit a prendre

Answer 3

A right to take something of value from someone else’s land.
Need not be a dominant tenement (capable of existing in gross).

Question 4

Numerus clausus

Answer 4

Proprietary rights tend to be a pre-determined/standardised list.

Question 5

Ellenborough Park Test

Answer 5

1. Dominant and servient tenements.
2. Benefits dominant.
3. Different ownership.
4. Right capable of forming the subject matter of a grant.

Question 6

Latimer v Co-Op

Answer 6

Easements of support between three houses. C was demolished, and A sued for the lack of support when their house began to lean.

Question 7

Moody v Stegges

Answer 7

On proximity requirement: capable of having an easement to erect advertising on a property at the end of a lane.

Question 8

Hill v Tupper

Answer 8

The right must exist for the benefit of the dominant tenement qua land. Cannot be purely personal interest.

Question 9

Subject matter of a grant requirement

Answer 9

Must be applicable in practice (e.g. to determine trespass). Must not grant an estate in the land itself, but purely an easement.

Question 10

Copeland v Greenhalf

Answer 10

Parking easement in front of a car garage was not an easement, was in fact an outright occupation.

Question 11

Regency Villas

Answer 11

Right to access for reasons uncertified at common law cannot be the subject matter of a grant.

Development where chalets are built and there is a central manor house which chalet owners have a right of access to, alongside pool and golf course etc.

HLords held: satisfies Ellenborough Park test. Can have a grant of purely recreational rights. Policy consideration – common law should support recreation.

Question 12

Head v Meara

Answer 12

Cites that a right of way is probably the most common easement.

Question 13

Colls case

Answer 13

Right to light is an easement.

Question 14

s.71 LCLRA

Answer 14

A conveyance of land includes existing legal easements or profits appurtenant to the land transferred.

Question 15

Express grant

Answer 15

I start with the land and give you an easement.

Question 16

Reservation

Answer 16

I am giving you the land minus the easement.

Question 17

Implied grant and reservation

Answer 17

O’Connell v O’Malley - implied grant

Dwyer Nolan - implied reservation

Palaceanne - common intent of the parties

Question 18

Wong case

Answer 18

Easements of necessity need not be rights of way. Here there was a right of conduit to allow smoke to pass out of a Chinese takeaway.

Question 19

Rule in Wheeldon v Burrows

Answer 19

Now abolished and reformulated in s.40 LCLRA
Conditions to create an easement here:
(i) Necessary to the reasonable emjoyment of the part disposed of
(ii) reasonable for the parties to assume at the date the disposition took place that it included the easement.

Only applies to grants, not reservations.

Question 20

Nickerson case

Answer 20

Easements of necessity arise not from the intention of the parties, but rather the public policy not to have unusable portions of land.

Question 21

3 basic requirements of estoppel

Answer 21

1. Reliance
2. Detriment
3. Unconscionability