Easements Land



= the right of a landowner to enjoy limited use of the land of another landowner.

'It is... true that the most efficient utilisation of land resources occurs only where the facilities implicit in estate ownership are parceled out amongst a number of persons- frequently between neighbouring land owners- as part of a more general scheme of social or commerical interaction.' - Gray and Gray. 

Why care about easements? In England and Wales 65% of titles are subject to at least one easement (Law Commission No 186 2008). They are an incorporeal hereditiment.

Definition- 'an easement is a right annexed to land to utilise other land of different ownership in a particular manner (not involving the taking of any part of the natural produce of the land or any part of its soil) or to prevent the owner of the land from utilising his land in a particular manner.'- Halsburys Laws. 

An easement is a right benefitting a piece of land (known as the dominant tenement) that is enjoyed by another piece of land owned by someone else (the servient tenement). 

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Characteristics of an easement

Appurtenant- belonging to. Tenement- piece of permenant property eg land or rents held by an owner.

Characterisitics of an easement- 

'The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind.'- Lord St Leonard in Dyce v Lady James Hay 1852. 

Easements are not fixed and they change and must reflect what goes on in the world. Old= trotting horses. New= maybe quad biking. 

Easements are either positive or negative. 

Postive- easements that permit the owner of the dominant land to do something on the servient land. eg use a path, run pipes, and services over the servient land.

Negative- easements that limit what the owner may do on the servient land. eg servient owner prevented from building due to interference with dominant owners right to light. 

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Characteristics of an easement

Re Ellenborough Park 1956- 'A right must have all of the following characteristics to be an easement: 1) there must be a dominant tenement (that enjoys the benefit of the easement) and servient tenement (over which the right is exercised). 2) the right must accomodate the servient land 3) the dominant and servient land must be owned by different persons. 3) the dominant and servient land must be owned by different persons. 4) the right must be capable of forming the subject matter of the grant.' 

1) there must be a dominant and servient tenement- every easement is linked with two pieces of land. An easement must exist in connection with a piece of land, it cannot exist independently. 

London and Blenheim Estates v Ladbroke Retail Parks 1992- there was no easement in this case as it needs a identifiable dominant and servient tenement before could be a grant or a contract to grant an easement. 

Identifying servient tenement- Pwllback Colliery v Woodman 1915- 'a right will not be an easement if it imposes an obligation over a very large and indefinite area.'- Lord Sumner. Need a specific channel. There was no nuisance as the easement needs to be regular and specific. 

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Characteristics of an easement

2) an easement must accomodate the dominant tenement, that is, be connected with its enjoyment and for its benefit. Accomodate means benefit. 

An easement 'accommodates and serves the dominant land, and is reasonably necessary for the for the reasonable enjoyment of that land, for if it has no necessary connection therewith, although it confers an advantage upon the owner and renders his ownership more valuable, it is not an easement at all, but a mere contractual right personal to the two contracting parties.'- Lord Evershed in Re Ellenborough Park. 

Not just about value. An easement must be both linked to and benefit the dominant tenement. It must not be a personal benefit. 

Geographical nexus- 'You cannot have a right of way over land in Kent appurtenant to an estate in Northumberland.'- Byles J in Bailey v Stephens. 

'A right granted to the purchaser of a house to use the Zoological Gardens free of charge... would undoubtedly increase the value of the property conveyed but could not run with it at law as an easement because there was no sufficient nexus between the enjoyment of the right and the house.'- Re Ellenborough

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Characteristics of an easement

'In such a case, the test of connexion or accomodation, would be amply satisfied, for just as the use of a garden undoubtedly enhances and is connected with the normal enjoyment of the house to which it belongs, so also would the right granted in the case supposed, be closely connect with the use and enjoyment of the part of the premises sold.'- Re Ellenborough Park

Is the right to benefit a tenement or a business?

Hill v Tupper 1863 - not allowed as personal licence benefitted business not land.

Moody v Steggles 1879- There was an easement to put a sign up because the land was and always would be a pub and so was a benefit to the land. 

Clapham v Edwards 1938- court held that an advertising right for a sign was not connected with the petrol station and so was a personal right, not an easement. The subject of the sign could change and didnt intrinsically benefit the land itself. 'If it were to enable the grantee as I hold it does, to advertise anything he chooses upon the flank walls in question, there is no connection between the dominant tenement and the servient tenement in the flank walls in respect of such a user.' 

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Characteristics of an easement

3) the dominant and servient land owners must be different persons- 

'You cannot have an easement over your own land.'- Lord Esher in Metropolitan Railway v Fowler 1892. 

'If the dominant and servient land both comes to be vested in the same person then the easement is extinguished.' Roe v Siddons 1888.

4) Right must be capable of forming the subject matter of a grant. This is the most tricky part of the test. McClean 1996- 'both obscure and unhelpful' Gardener 2007- 'inept shorthand'. 

A) must not be too wide and vague B) must not deprive the servient owner of possession C) not a mere right of recreation or amusement D) no new negative easements E) not involving expenditure.

A) must not be too wide and vague- no 'right to wander at will over a large and undefined area'- Re Ellenborough Park (got around this by saying they had a right over the path ways.) 

Right to an attractive or scenic view- not an easement Campbell v Paddington Corp 1911. 

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Characteristics of an easement

Right to flow of air to a windmill- not an easement Webb v Bird 1861

Right to light is an easement- Wheeldon v Burrows 1879. 

B) must not deprive the servient owner of possession- ouster principle- Law Commission No 186 2008- 'It is important to distinguish lesser interests in land, like easements, from rights in land that are possessory in nature such as leasehold and freehold estates in land... It is implicit in this definition that if the dominant owner is entitled to treat the servient land as his own property- that is, as if he has a possessory estate in that land- his right cannot be an easement. In our view, easements and possessory interests in land must be mutually exclusive.' 

Oust- meaning drive out or expel someone from a position or place. Copeland v Greenhalf 1952-'It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner.' 

Wright v McAdam 1949-(Coal shed case) 'exclusive possession is now the hallmark of an estate in land therefore Wright v McAdam is regarded as problematic as it is inconsistent with Copeland. How can a right be an easement if it confers exclusive possession of the servient land.' Law Commission. 

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Characteristics of an easement

London and Blenheim Estates v Ladbroke Retail Park 1992- how much land is used up? Can the landlord still use it? 'The essential question is one of degree. If the right is granted in relation to the area over which it is to be exerciseable is such that it would leave the servient owner without any reasonable use of his land whether for parking or for anything else, it could not be an easement, though it might be some larger or differing grant.'

Can a right to park exist as an easement? Batchelor v Marlow 2001- covered the whole of the servient land. 

Rejection of 'reasonable use'- Moncrieff v Jamieson 2007- 'I would for my part reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession, and subject to the reasonable exercise of the right in question, control of the servient land.' 

Batchelor v Marlow 2002 and Virdi v Chana 2008 are both applied in lower courts. Which is right? 

C) not a mere right of recreation and amusement- Mounsey v Ismay (1865)- horse racing was merely a recreational benefit and didnt benefit the land so was not an easement. 

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Characteristics of an easement

'it must be a right of utility and benefit and not one of mere recreation and amusement'- Mounsey v Ismay 1865

'comprised the provision for a limited number of houses in a uniform crescent of one single large but private garden.' 'Although a garden is a pleasure, on high authority, it is the pureset of pleasures.' 'The right claimed was appurtenant to the surrounding houses and constituted a beneficial attibute of residence in a house as ordinarily understood.' 'So concluded that for the purpose not only of exercise and rest but also for such domestic purposes as taking out small children in perambulators or otherwise is not fairly to be described as one of mere recreation and amusement and is clearly beneficial to the premises to which it is attached.' Re Ellenborough Park

'The judicial animus against recreational easemetns has undoubtedly receded in recent times. It may be an index of a more hedonistic (or health conscious) age that it no longer seems inappropriate to acknowledge the easement character of certain recreational facilities annexed to dominant land. This is particularly the case where the claim of easement refers to a defined area over which a right of recreational enjoyment has been given, not to the public but to a limited number of lot holders.' Gray and Gray. 

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Characteristics of an easement

D) no new negative easements- Hunter v Canary Wharf 1997- cant have an easement for TV reception.

E) not involving expenditure- positive burden goes beyond the essence of an easement. 

Duke of Westminster v Guild 1985- wanted servient land owner to unblock drain. Had to do it himself. 

Jones v Prtichard 1995- shared chimney. Dominant owner annoyed that servient owner wasnt fixing it, had to fix it himself.

William Old International Limited v Arya 2009- solicitors should know what they were doing and couldnt ask the servient land to sign more stuff to lay electricity cables after agreement.

Access to Neighbouring Land Act 1992- self help remedy. 

Can you have an easement for noise? Coventry v Lawrence 2015 discussed this. Maybe by prescription. Sound of Silence- Martin Dixon. 

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Acquisition (creation) of easements

Nemo dat quod non habet- if own freehold you have absolute title. If only own equitable title can only give equitable remedy. 

Legal easement- express grant/reservation by deed, implied grant/reservation, prescription

Equitable easement- contract, proprietary estoppel. 

Express grant- do in a deed, signed witnessed and says its a deed. LPA 1925 s1(2)(A) 'for an interest equivilant to an estate in fee simple absolute in possession or a term of years absolute'. If you do this properly you create a legal right.Cant give a legal right for life as it is too personal a term. 

Need deed and registration- LPA 1925 s52(1). Must be granted out of a legal estate.

Equitable? If you try to make a deed and it fails it may be a land contract. LP(MP)A 1989 s2. 

No writing= a licence. LRA 2002 s27(2)(D), 27 (1). 

Charges register LRA 2002 s32. Need to note it on title. 

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Acquisition (creation) of easements

Easement by estoppel- Crabb v Arun DC 1976- equitable interest, an equity arises s116. Given effect in the way courts want. 

Express reservation- can reserve rights eg to paint a fence, to go on land. Seller wants to keep something back on land before selling. LPA 1925 s65(1). 

Contra proferentum rule- if it cant be found in the documents the court decides against the person who drafted them. Sellers make the conveyance so the law finds in favour of the buyer as the seller should know the land. Ipswich case. 

Implied easements- also a legal easement. Implying something extra into a deed. Acquisition of an implied easement is 'neither straightforward nor clear'. Law Commission. 

Implied grant can be done by- necessity, common intention, Wheeldon v Burrows or s62 LPA 1925. 

Implied reservation can be done by- necessity, common intention. 

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Acquisition (creation) of easements

Implied reservation- two methods- through necessity and by common intention.

Reservations of necessity- only if your land is completely unusable and no access to public land. Clark v Cogge 1607- land locked. 'If a man hath four closes lying together and sells three of them, reserving the middle close, and hath not any way thereto but through one of those which he sold, alhtough he reserved not anyway, yet he shall have it, as reserved unto him by law.' Needs to be impossible, not impractical. 

Reservation by common intention- meeting of minds. Peckham v Ellison 2000- council had forgotten to reserve land allowing buyers of houses to use a ***** at the side for bins. Court found in favour as had already exercised right, was not a new burden, established path and implied easement of common intention. 

Implied grant- four methods- of necessity, by common intention, under the rule in Wheeldon v Burrows and under LPA 1925 s62. 

1) of necessity- Nickerson v Barraclough 1981- express statement said the land wasnt to have easements. The land was landlocked but couldnt claim easements by necessity as they had signed. 

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Acquisition (creation) of easements

Manjang v Drammeh 1991- land didnt adjoin highway, claimed necessity. Said couldnt have one as there was a river, could get to the land by boat. 

Sweet v Sommer 2005- CoA landowner had workshop on land which blocked the road access. Said there was no need to demolish building on own land, allowed to have another route via necessity. Maybe different result if you put the building up yourself knowingly. 

2) by common intention- can widen the scope of an easement you already have. Wong v Beaumont Properties 1964- mans lease said had to be a resturant, couldnt operate without better ventilation. Landlord said no. This was inconsistent. He needs to give ventilation to imply this in so can keep resturant open. 

3) under the rule in Wheeldon v Burrows 1879- no right to light was reserved by implication. Only rights of necessity would be implied. 'There will pass to the grantee all those continuous and apparent easements (quasi easements) or in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been, and are at the time of the grant used by the grantor for the benefit of the part granted.' Thesiger. 

Rules for W v B- 1) continuous and apparent 2) necessary to the reasonable enjoyment of the land sold and 3) in use at the time of sale. 

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Acquisition (creation) of easements

Ward v Kirkland 1967- couldnt claim the right to fix their cottage by going onto someone elses land, as it wasnt continuous and apparent. W v B couldnt help them. 'The words continuous and apparent seem to be directed to there being on the servient tenement a feature whcih would be seen on inspection and which is neither transitory nor intermittent. For example drains, paths as contrasted with the bowsprits of ships overhanging a piece of land.' 

2) necessary to the reasonable enjoyment of the land sold- Wheeler v JJ Saunders 1996-  wont give you a second access route into property just because itd be nice. Should benefit the land and not the person. 

3) in use at the time of sale- Constagliola v English 1969- immaterial that the right hadnt been used for 10 months, it was still an easement. A gap of under a year seems like it wouldnt be a problem. 

Non derogation from grant- quasi easements, you assume theyre there and so you cant derogate. This is why it is important that you can see it, quasi easements that the purchaser thinks theyre getting. 

Implied reservation under Wheeldon v Burrows- much narrower, cant have land encumbered.

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Acquisition (creation) of easements

Only can have necessity, cant have implied reservation under W v B. 

4) under LPA 1925 s62. This may just be a word saving provision. Also can create new easements that have been thought to be with the land. Law Commission dont like this as its too wide. 

Can turn quasi easements into easements.

International Tea Stores v Hobbs- seller sells part of his land that has already been in separate occupation, all the words of s62 were included in the conveyance.

Wright v McAdam 1949- if tenant has (additional to rights in the lease) additional benefits then when lease is renewed then s62 may transform these into easements. The personal licence to keep coal in a shed turned into an easement when the lease was renewed as this counted as a conveyance. 

Long v Gowlett 1923- basis for s62 have to have piece of land that is in separate occupation. Normally one owner grants a lease over another part. No easement in this case under s62 as no separate occupation. 

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Acquisition (creation) of easements

LPA 1925 s62(4)- can have contrary intention in the documents eg saying s62 doesnt apply. 

Platt v Crouch 2003- sold land but didnt exclude s62. Easement was made under s62, the sale was as though the land had the benefit. 'The riverside moorings at the hotel are a lovely place to spend a lazy afternoon.' Not sure if good law as doesnt distinguish Long v Gowlett. 

Wheeldon v Burrows- rights enjoyed by grantor, no diversity of occupation, no conveyance needed,must be continuous and apparent. 

S62 LPA 1925- rights already enjoyed by the grantee, diversity of occupation necessary, rights become easements on conveyance, need not be continuous and apparent. 

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Long user + acquiescence by the servient owner (failure to object). 

Three methods- common law prescription, doctrine of lost modern grant, under the Prescription Act 1832. All require 20 years use. 

Prescription= a legal easement. For the benefit for freehold only, you claim forever not for a term. Dominant owner used servient land as of right: without force, without secrecy and without permission.

Continous use- depends on right exercised eg right to light comes every day. Hollins v Verney 1884- use at intervals of 12 years wasnt uninterupted use. However doesnt have to be all the time.

Without force- if contentious or aggressive it cant be as of right. Eaton v Swansea Waterworks 1851- drawing water from servient land to irrigate dominant land. Servient owner resisted. Dominant owner continued and fined but he didnt appeal. The servient owner hadnt acquiescenced and so dominant knew he had no right.

Without secrecy- servient owner has to have the option to object. Cant tolerate it. 

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Liverpool Corporation v Coghill 1918- drain entered sewer below ground. Impossible for the corporation to ascertain. 

Without permission- cant pay for it, this trips up a lot of claims. If your licence lapsed you can claim with 20 years use. Gardener v Hodgsons Kingston Brewery 1903- paid 15s each year and so wasnt without permission. It was a licence.

Bakewell Management v Brandwood 2004- hard to claim easement when the use is illegal. Claimed easement over common land which is illegal if dont have permission to use. 

Common law- 'time immemorial' 1189- this is asking if theyve always had the right in 'living legal memory'. Rebuttable presumption. Easy to rebut as so long ago. Pretty much defunct. 

Lost modern grant- this is the main way claims are brought. If use for 20 years it is assumed that someone gave you the right but the deed was lost. It is a fiction. This is why theyre legal. 

Bryant v Foot 1867- strong presumption- if you can show 20 years it is likely you can claim.

Tehidy Minerals v Norman 1971- any period of 20 years. The 20 years doesnt have to be the 20 years preceeding. Can have a gap before claim. 

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From Tehidy Minerals- 'where there has been upwards of 20 years uninterrupted enjoyment... the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made. If this legal fiction is not to be displaced by direct evidence that no grant was made it would be strange if it could be displaced by circumstantial evidence leading to the same conclusions.' Buckley LJ- it is a very strong presumption. 

Dalton v Angus 1881- right to lateral support- assumption that the deed of grant has been lost. Established negative easement. 

London Tara Hotel v Kensington Close Hotel 2011- servient owner should check every 18 years to ensure that if they have granted a licence that ownership of the dominant land has not changed as a new owner can acquire a prescriptive right. Prescriptive right can be based on use by third party where the third party's use benefits the dominant land. If licence expires or new person they can build up their prescriptive rights. 

Prescription Act 1832- S1 profits, S2 easements (other than light) S3 easements of light. 

S4- says 'shall be deemed and taken to be the period next before some suit or action' Needs to be the 20 years immediately before hand under the Prescription Act. 

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Deductions- Short period- 20 years S2- protects servient owner when an infant, patient under the Mental Health Act or a tenant for life.

Long period- 40 years S2- protects servient owner when land (if resists claim within 3 years) held by a tenant for life, or held by a tenant under lease of more than 3 years. 

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Registration and priority

Express grants- S52 LPA says needs to be in a deed. S1 MPA says what a deed is. LRA 2002 s27(2)(D) says easements need to be registered. 

An equitable easement- bad deed and failed to register. 

LPA 1925 s70(1)(A)- October 2003- before then any messed up deed was caught by this. Equitable easements were overriding interests. 

After 13th October 2002- when the LRA 2002 came into force equitable easements are no longer overriding and have to be noted on title. 

Implied easements and those created by prescription- legal easements dont need to be registered given how they arise. 

LRA 2002 sch 3, para 3- protected by thsi. Doesnt need to be registed but is overriding interest. Needs to meet one of three criteria which isnt hard. 1) purchaser actually knows of easement 2) easement is obvious on a reasonably careful inspection of land 3) easement has been exercised within one year before the disposition. The person claiming the benefit has to show this. 

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B and Q v Liverpool and Lancashire Properties Limited 2000- wanted to build a new building and take away some of B and Q's easements. Was this an actionable interference? 'Is grantee reasonable in claiming that right cannot be substantially and practically exercised as convieniently after interference?' Doesnt have to be absolute but more than trifling. Court agreed with B and Q and said interference was substantial. 

Gates and locks- may end up being helpful. It makes a difference if you have a key. All context.

Dawes v Adela Estates 1970- gate was not necessarily a substantial interference,

Geoghegan v Henry 1922- flats, had a lock on the lobby door, all residents had a key but the postman couldnt get in. Intefered with residential useage substantially. People need to be able to reach you. 

Light- it is not enought to show light is reduced. Need to show the reduction amounts to a nuisance. 'All ordinary purposes for which the property may reasonably be expected to be used.'- Carr Saunders v **** McNeil Associates 1986. Adequately lit for reading in the room. Think about what is reasonable in the property, commerical or residential etc?

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Remedies for breach

If you think you have the benefit you can ask for declaratory relief. 

Mills v Silver- right over agricultural land but could only use when dry. Laid some stones to use. Court said they couldnt do this as it was trespassing. Damaged the land and made them take the stones up and give damages. 

4 remedies- 1) declaratory relief- if you think you have the benefit you can just get the court to declare the right 2) injunction- most severe 3) damages 4) abatement- self help remedy. 

Shelfer v City of London Electric Lighting Company 1895- Smith LJ set out rules for an injunction or damages. Judicial discretion. Damages are when the injury to legal rights was small, injury was capable of being estimated in money, injury could be adequately compensated by small money payment or oppressive to defendant to grant injunction. Some think damages are given out too often.

Regan v Paul Properties 2006- injunction given when development built 12m above his flat blocking his right to light. The court said you cant just buy off rights with damages.  

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Remedies for breach

Coventry v Lawrence 2015- Supreme Court- Neuberger said you shouldnt slavishly follow Shelfer. Power to award damages is a discretion and shouldnt be fettered. Need to weigh in planning permission. Mance- didnt agree with planning permission. Injunction and damages given. 

Damages- 1) damage suffered to the property? 2) loss due to inability to use land or exercise rights? 3) consequential loss flowing from tort (if reasonably foreseeable)? 4) stress/exemplary damages where defendant stands to make a profit? 

Abatement- 1) a right to enter onto servient land in certain circumstances 2) a remedy of putting right the interference. Abatement can only be used when a cause of action in nuisance arises. Only appropriate in very simple cases. Cant abate if you have an injunction. 

Termination/extinguishment- express release- most common and powerful.

Unity of seisin- Roe v Siddons 1888- merging of land automatically extinguishes, even if you sell it again they are gone.

Permanently unexercisable or abandoned- Benn v Hardinge 1993- 175 years no use but still not abandoned. Court wants to see intention to abandon. 

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