#3743 - Easements - GDL Land Law

- Definition: right enjoyed + exercised over land of another (ius in alieno solo).

• can be legal (s1(2) LPA 1925).

• positive: right to enjoy/use land of another in particular way (e.g. right of way);

• negative: right to restrict way in which another may use land (e.g. right of light) – now rare.

- Structure:

• 1. capable of being an easement (a. Re Ellenborough Park criteria; b. 3 additional factors).

• 2. properly acquired? (a. express grant/reservation; b. implied grant/reservation).

• 3. enforceable vs. 3^rd party? (registered/unregistered land rules).

Capability

Essential Characteristics (Re Ellenborough Park, [Evershed MR]): must be attached to land.

- 1. Dominant + servient tenement must exist (London & Blenheim Estates v Ladbroke Retail Parks).

• 2 identifiable pieces of land at time of grant: dominant (benefits) + servient (burdened)

• if not cannot be easement: cannot exist in gross (i.e. independent of land – would prob. be licence).

  • Hawkins v Rutter: right to park barge on oyster bed not easement (barge not land).

  • Alfred Becket v Lyons: right to collect coal from sea shore not easement (no dominant tenement).

- 2. Easement must accommodate a dominant tenement: i.e. direct benefit to land, not just particular owner.

• factors:

  • makes dom. tenement better/more convenient.

  • connected to normal use/enjoyment of dominant tenement.

  • would benefit any owner: i.e. not mere personal right.

  • increases value of dominant tenement.

• commercial right: if necessary incident of land, not unconnected business.

  • Hill v Tupper: right to put pleasure boats on canal from land no: personal commercial right.

  • Moody v Steggles: right to put up sign for pub valid: long-term use of land as pub, so benefit to land.

• proximity with servient land needed (Bailey v Stephens: ‘cannot have RoW over land in Kent for Nmbr’land estate’).

- 3. Diversity of ownership/occupation: cannot have easement over own land (Roe v Siddons).

• own land: quasi-easements: right exercised over one part of land for benefit of another can become easements on division of ownership (Roe v Siddons).

• can be diversity of occupation only – leases: OK for freehold of d. + s. land to be joined.

• if freeholds of d. + s. land joined easements extinguished.

- 4. Right must ‘lie in grant’: i.e. be capable of forming subject matter of deed – 3 elements:

• i. capable grantor + grantee: 2 separate legal personalities + hold legal estate + capacity.

• ii. capable of reasonably exact definition: i.e. not too vague certainty + enforceability.

  • rights of light, water, air, passage etc.: need defined channels (Harris v De Pinna; Bryant v Lefever).

  • not rights that require subjective interpretation (William Aldred’s Case; Bland v Mosley: scenic view).

• iii. within nature of rights traditionally recognised as easements (but not closed list):

  • established easements:

    • right of way (Borman v Griffith).

    • right of light (Colls v Home & Colonial Stores).

    • right to water in defined channel (Race v Ward).

    • right to air in defined channel (Wong v Beaumount Property).

    • right to support (Dalton v Angus & Co).

    • right of storage (Wright v Macadam).

    • right of drainage/pipeline through defined channel (inc. gas, electric) (Atwood v Bovis Homes).

    • right to pollute river (Scott-Whitehead v National Coal Board).

    • right to cause a nuisance (Sturges v Bridgman).

  • new easements can be recognised (Dyce v Lady Jones) – test:

    • 1. satisfies Re Ellenborogough Park requirements.

    • 2. not negative: courts reluctant (Phipps v Pears: no right to weather protection; Hunter v Canary Wharf: no right to TV signal).

3 Limitations: failure will prevent right from being capable of being easement (only raise if relevant).

- 1. Servient tenement owner must not incur expense.

• Regis Property v Redman: supply of hot water not easement.

• Rance v Elvin: right to passage of water on s. land CoA: valid, but d. owner must reimburse expenses (meter).

• necessary repairs/maintenance: at d. owner’s expense (Carter v Cole).

  • s. owner must allow access (Jones v Pritchard; Access to Neighbouring Land Act 1992).

- 2. Does not amount to exclusive possession of servient land by d. owner.

• conflicting tests:

  • a. is s. owner left with reasonable use of land? (Grisgby v Melville; Batchelor v Marlow).

    • preferred test (Virdi v Chana: followed, Moncrieff v Jameson not binding).

  • b. does s. owner retain possession + control (Moncrieff v Jameson (Scot), [Ld Scott]; Waterman v Boyle).

    • less likely exclusive possession: e.g. s. owner could still dig under land where car parked.

• differing definitions of servient land: can influence result.

  • wide approach: entire property (Wright v Macadam) less likely to be exclusive possession.

  • narrow approach: only part over which easement exercised (Batchelor v Marlow).

• application:

  • Grigsby v Melville: right to store articles in cellar no: exclusive.

  • Jackson v Mulvaney: use of communal garden easement.

  • right to park car: only if does not interfere with s. owner’s reasonable use.

    • Hair v Gillman: right to part in spaces OK.

    • Batchelor v Marlow: right to park 6 vehicles from 8.30am-6pm Mon-Fri no: exclusive.

- 3. Exercised as of right: repeated permission not needed (Green v Ashco Horticultural: d. owner always moved van when asked by s. owner not easement).

Acquisition

Express Acquisition

- Express grant or express reservation required.

• reservations: construed against dom. tenement owner (Trailfinders v Razuki).

- Legal or equitable?

• legal: 1. by deed (s52(1) LPA 1925); 2. freehold/leasehold term (s1(2)(a) LPA); 3. registered (s27(2)(d) LRA 2002).

• equitable: failure to fulfil legal requirements, but s2 LP(MP)A 1989 compliant contract.

Implied Acquisition

- Implied into deed or contract: need deed or contract to begin with.

• 4 methods:

  • 1. necessity: implied grant or reservation.

  • 2. common intention: implied grant or reservation.

  • 3. rule in Wheeldon v Burrows: implied grant only.

  • 4. s62 LPA 1925: implied grant only.

- 1. Necessity: essential for ANY use of dom. land, not just convenient – i.e. right of way for landlocked (Pryce v McGuinness).

• NOT if any alternative access route (Manjang v Drammeh: access by water possible no implied right of way).

• poss. if alternative unrealistic (3^rd party’s land) (Adealon Int’l Proprietary v Merton BC).

• based on intention of parties: express contrary intention will defeat (Nickerson v Barraclough).

- 2. Common intention: essential for SPECIFIC purpose mutually intended by parties (Wong v Beaumont Properties: lessee covenanted to use as restaurant + comply with h+s regs. implied right ventilation through landlord’s property) – requires:

• 1. common intention at date of grant: burden of proof on party claiming – heavy (Re Webb’s Lease: not enough to show right openly exercised prior).

• 2. particular easement necessary to give effect to that intention.

- 3. Wheeldon v Burrows: grant of part of land quasi-easements pass to grantee as easements – requires:

• 1. common owner + occupier prior to sale/lease (Kent v Kavanagh).

  • 2 plots sold contemporaneously both new owners acquire easements (Swansborough v Coventry).

• 2. right continuous + apparent: not transitory/intermittent + visible on inspection (Borman v Griffith).

  • continuous: sense of permanence, but not necc. incessant (Costagliola v English: 10-11mths non-use OK)

  • apparent: discoverable from careful physical inspection by conversant person (Hansford v Jago: worn path).

  • rule of common sense, honesty, decency (Sovmots Investments v SS Environment).

• 3. necessary to reasonable enjoyment of property: more than mere convenience (Wheeler v JJ Saunders).

  • Borman v Griffith: alt. route not robust enough for poultry business RoW over main drive.

  • Wheeler v JJ Saunders: 1 of 2 access routes to pig farm blocked no implied easement: 1 route sufficient.

  • N.B. debate: both (2) + (3) needed?

    • poss. alternatives (Ward v Kirland).

    • but predominant view: both needed (Millman v Ellis).

• 4. used by owner immediately before transfer: recent past + expected to be used again in near future.

  • by owner: not e.g. tenant (Kent v Kavanagh).

• 5. no contrary intention (s62(4) LPA 1925): common practice.

• N.B.:

  • applies to grants only, not reservations: reservations construed against person making reservation.

  • can be implied into deed + contract: cf. s62 LPA 1925 – conveyance only.

  • same duration as grant: if implied into lease lease duration only.

- 4. s62 LPA 1925: all existing rights etc. attached to land to successor may create easements – requirements:

• 1. conveyance: sale of freehold or grant of new lease – to tenant or 3^rd party (s205 LPA 1925).

  • NOT contract (cf. Wheeldon v Burrows).

• 2. in use prior to transfer: not in far past (Penn v Wilkins).

• 3a. diversity of ownership prior to sale/lease (Sovmots Investments v SS Environment; Payne v Inwood).

  • exception: right to light (Broomfield v WIlliams).

• 3b. BUT poss. alternative: right ‘continuous + apparent’ (P & S Platt Ltd v Crouch, [Peter Gibson LJ]).

  • Wheeldon v Burrows redundant: except where implying into contract.

    • s62 easier: no need to show necessary for reasonable enjoyment.

  • approach confirmed (Alford v Hannaford), but uncertain if will be followed.

  • [exam: 1. consider Wheeldon v Burrows; 2. consider P&S Platt v Crouch].

• 4. no contrary intention (s62(4) LPA 1925).

• application: licences/privileges easements on conveyance of dominant tenement.

  • Int’l Tea Stores v Hobbs: licence to tenant to use main drive easement when t. acquired freehold.

  • Wright v Macadam: l. granted t. licence to store coal easement when t. granted 1 yr...