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1

Easements

Definition

The right to use/enjoy (or the right indirectly to restrict the use/enjoyment) of land belonging to someone else

2

Legal Easements

Easements granted for equivalent to f/h or l/h term ​- (S1(2)(a) LPA 1925)

3

Equitable Easements

  • s.1(3) LPA 1925 – all interests in land which are not legal estates or interests take effect in equity only
  • Easement won’t be legal if:
    •  Fails on formalities
    •  Parties deliberately enter contract to create legal easement in future
    •  Granted for uncertain period
    •  Grantor has equitable estate
  • Easements for an uncertain term
  • Estate contracts - (deliberately created estate contracts AND ‘failed’ legal interests: equitable lease; equitable easement; equitable mortgage)

4

Formalities

Expressly Granted Legal Easements

  • s52 LPA; S1 LP(MP)A - Legal interests must be granted by deed
  • s27 LRA 2002 - and be substantively registered if servient land is registered
  • If servient land is unregistered, legal interests bind the world

5

Formalities

Expressly Granted Equitable Easements

  • Equitable easements generally must:
  • comply with s2 LP(MP)A (though easements for uncertain term need only comply with s53(1)(a) LPA))
  • and be protected by s32 Notice if land is registered, otherwise purchaser for value takes free – s29 LRA
  • If land is unregistered, protect by D(iii) or C(iv) Land Charge,
  • s4(6) LCA 1972 - otherwise purchaser takes free

6

Enforcement of easements by new dominant owner

Easements

  • s62 LPA 1925 – when land changes hand everything that counts as land changes hands, e.g. rights of way etc

7

Reservation

Easements

  • Land owner reserves a right for themselves over the land he has sold or let
  • Strict construction by the courts

8

St Edmundsbury & Ipswich Diocesan Board of Finance v Clark (No 2) [1974]

Strict construction of reservations

Easements

  • Strict construction of reservations (land owner has ability to reserve exactly what they want so assumed to have done it)
    • CoE owned church, churchyard, rectory and grounds. Access across rectory grounds. 1945 – rectory sold off and reserved right of way through rectory gardens to the church. Didn’t make it clear if by foot or by vehicle. Clark, new owner of rectory, claimed was on foot only. Provided issues for weddings and funerals. Court looked at land and at beginning of drive were 2 stone posts 4 feet apart and so they construed could only have been on foot as too narrow for a car.

9

Cordell v Second Clanfield Properties Ltd

Strict construction of reservations

Easements

  • Strict construction of reservations (land owner has ability to reserve exactly what they want so assumed to have done it): 
    • Person selling land reserved right of way in hope would provide access to reserved land which could be developed. At time of reservation was 12 feet wide. Went back later and asked for a further 8 feet. Court refused as were in a position to reserve what they needed at the time.

10

Attwood v Bovis Homes [2000]

Strict construction of reservations

Easements

Land owner not allowed to change the burden substantially

11

Massey v Boulden [2002]

Strict construction of reservations

Easements

Right of way cannot be used substantially for another purpose

12

Grant

Easements

Land owner creates a right in favour of a new owner/tenant of part of land, over his retained land

13

Re Ellenborough Park [1956]

Essential Characteristics of an easement

Easements

1.  There must be a Dominant and Servient tenement

2.  Right must accommodate Dominant tenement

3.  There can be no common ownership

4.  Right claimed must lie in Grant

  • Square in London with shared garden. Surrounding owners each had a right to the garden. During the war, garden was requisitioned.
  • Was the owner’s right to access an easement? If so, would be entitled to compensation from War Office for loss of proprietary right. Court held it was a legal easement on grounds of above characteristics.
  • All criteria must be met or don’t have an easement

14

London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]

There Must be a Dominant and Servient Tenement

Easements

There must be 2 identifiable pieces of land; one which benefits the exercise of the right (dominant tenement) and one which is burdened by its exercise (servient tenement)

15

Hawkins v Rutter [1892]

There Must be a Dominant and Servient Tenement

Easements

An easement can’t exist on gross – has to be dominant and servient

16

Hill v Tupper [1863]

Right must benefit the Dominant Land

Easements

  • Right must Benefit the dominant land itself:
    • Lease of property on canal bank granted by proprietor’s of Basingstoke Canal Navigation. Lease included right to hire out boats to use on the canal. Landlord of a pub near the canal allegedly interfering with this by putting his own boats on canal and taking business away. Leaseholder claimed there was an interference with an easement and sought an injunction. Court rejected and said wasn’t an easement and said putting boats on the canal was not sufficiently connected to the land, but to the benefit of his business.

17

Moody v Steggles [1879]

Right must benefit the Dominant Land

Easements

  •  Right must Benefit the dominant land itself:
    • Right to an advertising sign on someone else’s premises. Dominant tenement was a pub down side of a street and couldn’t be seen from main road as servient tenement obscured it. Dominant tenement hung an advertising sign on servient tenement’s building and said it was an easement as connected to land. Court agreed – dominant tenement had been sold as a pub, always used as a pub, and use of the land was inextricably connected to business and land itself. Right to hang sign accommodated dominant land.

18

Pugh v Savage [1970]

Right must benefit the Dominant Land

Easements

  • Proximity – 2 tenements must be sufficiently proximate for the dominant land to be benefitted by the right.
    • Right of way over 1 field to get to another. Right of way benefitted dominant tenement even though dominant tenement didn’t adjoin servient tenement.

19

Bailey v Stephens [1862]

Right must benefit the Dominant Land

Easements

you cannot have a right of way over land in Kent appurtenant to an estate in Northumberland

20

Roe v Siddons [1888]

No common ownership of dominant and servient tenements

Easements

  • A person cannot have an easement over his own land. Any rights that a person exercises over one part of his land for the benefit of another part of his land are natural incidents of ownership. Such rights are known as quasi-easements; they are capable of becoming easements on division of ownership.
  • It is possible for easements to exist where one person owns both pieces of land, but has leased one to another.

21

Right claimed must lie in grant

Easements

Three aspects:

  1. Need capable grantor and grantee
  2. Right must be sufficiently definite – have to be able to describe sufficiently and unambiguously what you are claiming
  3. Right must be judicially recognised or analogous to a recognised easement

22

Need Capable Grantor and Grantee

Right claimed must lie in grant

Easements

  • Must have Estate in land (legal or equitable)
  • Must have Legal capacity to grant interest
  • Grantor and grantee must have separate legal personalities – LPA 1925, s1(6) and s22.

23

Bland v Moseley [1587] 

Right must be sufficiently definite

Right claimed must lie in grant

Easements

  • Right must be sufficiently definite – have to be able to describe sufficiently and unambiguously what you are claiming
    • Right to a view couldn’t be awarded as too ill-defined – does view have to be unchanging? Can nobody build etc?

24

William Aldred’s Case [1610]

Right must be sufficiently definite

Right claimed must lie in grant

Easements

No right to enjoy a scenic view

25

Harris v de Pinna [1886]

Right must be sufficiently definite

Right claimed must lie in grant

Easements

No right to privacy

26

Borman v Griffith [1930]

Right must be judicially recognised

Right claimed must lie in grant

Easements

Rights of way

27

Colls v Home & Colonial Stores Ltd [1904]

Right must be judicially recognised

Right claimed must lie in grant

Easements

Rights of Light

28

Race v Ward [1855]

Right must be judicially recognised

Right claimed must lie in grant

Easements

Rights to water in a defined channel

29

Wong v Beaumont Property Trust [1965]

Right must be judicially recognised

Right claimed must lie in grant

Easements

Rights to Air in a Defined Channel

30

Dalton v Angus & Co [1881]

Right must be judicially recognised

Right claimed must lie in grant

Easements

Rights to Support