Easements

Question 1

What is an easement?

Answer 1

A right to cross or otherwise use someone else’s land for a specified purpose.

Question 2

Re Ellenborough Park Test

Answer 2

1. Must be a dominant and servient tenement.
2. Must be different people.
3. Must accommodate the dominant tenement.
4. The right must be capable of forming the subject-matter of a grant.

Question 3

Must accommodate the dominant tenement.

Answer 3

All easements must be appurtenant to the identifiable land. They must benefit the land.

Question 4

Re Ellenborough Park Test

Answer 4

The right to use the park held to benefit the surrounding plots of land because a domestic property is always improved in character by the availability of a garden.

Question 5

Problems relating to accommodating the dominant tenement.

Answer 5

May arise when the right claimed tends to confer an advantage, not on the land itself, but for some trade or business which is being carried upon the land.

Question 6

Hill v Tupper 1863

Answer 6

Right claimed as an easement was the right to put pleasure boats on the canal which bordered the dominant land. It was held that this right did not amount to an easement, because it did not benefit the land.

Question 7

Moody v Steggles (1879)

Answer 7

The right to hang, on neighbouring land, a sign pointing towards a public house was held to be capable of being an easement.

Question 8

Must be capable of forming subject-matter of a grant

Answer 8

They must lie in grant.
The easement cannot be;
-too wide or too vague
-inconsistent with the possession of the servient tenement.
-a mere right of recreation and amusement.

Question 9

Rights of Way

Answer 9

A right to pass over servient land can be for general passage, or can be limited.

Should one party maintain the path?
-Carter v Cole [2006]: No requirement to do so bt if either do, they must do so at their own expense.

Question 10

Right to Light

Answer 10

Colls v Home & Colonial Stores Ltd [1904]

Question 11

Right to Water

Answer 11

Race v Ward

Dickinson v Grand Junction Canal Co Ltd

Question 12

Rights to Drainage

Answer 12

Attwood v Bovis Homes Ltd 2001

Question 13

Right to Air

Answer 13

Wong v Beaumont Property Trust Ltd 1965

- Use of ventilation ducts.

Question 14

Right to Use Facilities

Answer 14

Miller v Emcer Products Ltd 1956

- Use of lavatory

Question 15

Rights of Storage

Answer 15

The right to store goods on another’s land.
Copeland v Greenhalf 1952
- High Court rejected the claim by the owner of a workshop that he had a right to store vehicles awaiting repair or collection on a strip belonging to his neighbour.

Question 16

Moncrieff v Jamieson 2007

Answer 16

M had succeeded at first instance and on appeal in establishing that he had an implied right to park on the land of the appellant, J. The House of Lords raised a number of issues.

• J’s claim that a right to park did not amount to an easement in law.
• That the claim was for an implied right to park.

REAL RULE = Not to deprive servient owner of possession.

Held: Lord Scott and Neuberger that there was a difference between giving the dominant tenement “sole use”, which would be consistent with an easement, compared to giving the dominant tenement “exclusive possession” which would be inconsistent with an easement.

Question 17

No new negative easements

Answer 17

In the case of a positive easement, the servient owner must do something in order to exercise the right.

A negative easement is a right which is enjoyed without any action by the dominant owner.

Phipps v Pears

Question 18

Legal Easements and Profits

Answer 18

LPA S.1(2) defines legal easements and profits as being granted for a period ‘equivalent to a fee simple absolute in possession or for a term of fixed years’.

Forever OR for a fixed term.

Question 19

Equitable easements or profits

Answer 19

Anything that does not fall within the meaning of S.1(2).

Question 20

Deed Creation

Answer 20

Must be created by a deed to be legally enforceable.

Question 21

Exception to deed creation?

Answer 21

Prescription - 20 years unfettered use.

Question 22

Is an easement enforceable against a purchaser of a servient tenement?

Answer 22

Yes. Will be binding.

Question 23

When is an easement or profit an overriding interest?

Answer 23

Legal Interest
Arises by implied grant or reservation, or by prescription.
It satisfies one of the following;
-Registered under the Common Act 2006
-Acquirer knew of its existence
-Acquirer didn’t know but it was obvious.
-Even if doesn’t meet above, it has been exercised within the period of one year.

Question 24

Wheeldon v Burrows - Quasi Easements

Answer 24

1. Must be continuous and apparent.
2. Necessary to the reasonable enjoyment of the land.
3. In use by the owner at the time of the sale.

If all three are satisfied then an easement is implied.

Question 25

Should both rule 1 and 2 of Wheeldon v Burrows be met?

Answer 25

Ward v Kirkland 1967
- Put forward the suggestion that each requirement should be met according to different things.

CONTRAST

Millman v Ellis 1995
- Put forward that both should be met at the same time.

Unclear.

Question 26

Continuous and Apparent - (3) of Wheeldon v Burrows.

Answer 26

Those which are enjoyed passively, such as the right to drainage, support and light and are therefore in use all of the time.

Question 27

Must the use be as a right?

Answer 27

Yes.
Essential for the claimant to establish that, throughout the period of use, he or she has enjoyed the right claimed ‘as a right’.
Must be consistent with the fiction that the right was granted at some time in the past.

Question 28

Must the use be continuous?

Answer 28

Yes.

The infrequent use of a right is not sufficient.

Question 29

Termination of Easements

Answer 29

1. Dominant & Servient Tenement’s coming into the same hands.
2. Release
3. Implied Release (Abandonment)
   
   • Hard to satisfy
   • Non-use is not acceptable.
     
     • James v Stephens 1893
     • Benn v Hardinge 1992 - 175 years.
     • CDC 2020 PLC v George Ferriera 2005
     • Williams v Sandy Lane Ltd 2007.