#17297 - Easements - GDL Land Law

Definition of an easement:

• Two pieces of land – it is a right enjoyed by one piece of land over another piece of land.

  • Dominant Tenement – the piece of land that enjoys the benefit of the right.

  • Servient Tenement – the piece of land over which the right exists (the burden).

• These rights are bound to the land and therefore pass with the land when the land is sold.

• Parker v Roberts – It is an easement for the dominant tenement alone, not for any other/adjoining land.

Distinguish from profits a prendre:

• A profit is very similar to an easement but, unlike an easement, it involves the right to enter someone else’s land and take something from the soil.

The four conditions (in Re Ellenborough Park (1956) affirmed in Regency Villas v Diamond Resorts [2018])

• 1) There must be a dominant and a servient tenement.

• 2) The easement must accommodate the dominant tenement.

• 3) The dominant and servient tenement must be owned (or occupied) by different people.

• 4) The right claimed must “lie in grant”

1) There must be a dominant and a servient tenement.

• An Easement cannot ‘lie in gross’: there needs to be a benefitted piece of land.

• The dominant tenement must exist and be identified at the time of the grant:

  • London & Blenheim Estates v Ladbroke [1994]

2) The easement must accommodate the dominant tenement.

• Must enhance the utility of the dominant tenement: A qualitative judgement is required here.

• Must ‘enhance the utility of the land’ and must do so in relation to the ‘normal use of the land’ (Regency Villas)

• It is not enough that the alleged use is attached or annexed to the dominant land.

  • E.g. right to enter Lords if you live nearby. This may increase value of the land but does not increase utility in relation to its normal use.

• The tenements must be sufficiently proximate – if not neighbours they must be nearby (Bailey v Stephens).

• Hill v Tupper (1863) - owner of a canal leased land on the bank of the canal to H and granted him sole and exclusive right of putting pleasure boats on the canal. Tupper then put rival pleasure boats on canal.

  • There was nothing about the use of mooring that enhanced his land – there is nothing special about that piece of land. Therefore no easement.

• Moody v. Steggles (1879) The case concerned a right to put a sign advertising a public house on a neighbouring building.

  • It was held that the right - which benefited the trade that was being carried on the dominant tenement - was capable of being an easement.

3) The dominant and servient tenement must be owned (or occupied) by different people.

• Occupied means by a tenant, licensee, or maybe even a squatter.

  • Borman v Griffith – landlord and tenant

4) The right claimed must “lie in grant”

• Capable of forming the subject matter of the grant, i.e. an easement must be capable of being an easement.

• Must be capable of a reasonably exact description

  • No right to enjoy a scenic view: William Aldred’s Case (1610)

• Must be within the general nature of the rights traditionally recognised as easements -

  • Rights of way – Borman v Griffith [1930]

  • Rights of light

  • Rights of support

  • Rights of storage – Wright v Macadam

  • Rights of signage – Moody v Steggles

  • Right to water in a defined channel

  • Right of drainage through a defined channel

  • Right to air in a defined channel - Wong v Beaumont Property [1965]

  • Rights to pollute or cause a nuisance

  • Right to use recreational facilities – Regency Villas

  • Any new easement must be analogous to these categories – incrementalism.

• Easements are generally passive (not requiring servient owner to do anything).

  • Some exceptions: e.g. the easement of fencing (Crow v Wood; Churston Golf v Haddock [2018] – appeal pending) requires the servient owner to build and maintain a fence.

    • Also easement of support (Phipps v Pears) have to maintain the wall which is supporting your neighbours building.

    • Cardwell v Walker – servient owner has to generate electricity

• Regency Villas raises question of expenditure. Generally should not be required.

  • Who is going to pay for upkeep of golf course, swimming pool etc.

    • If the alleged use imposes an obligation to spend money it cannot be an easement.

    • Held that the dominant owners could still use the facilities without the the servient owners spending anything.

  • Cf. overruling Moncrieffe v Jameson

    • Lord Scott said he doubted whether you could have an easement to use a swimming pool as required servient to spend money

  • Lord Cornwath: permanent membership of a country club.

• Cannot Oust Servient Owner from their Land:

  • In order to be an easement, the dominant owners activity must allow the servient owners reasonable use of their own land.

    • Bachelor v Marlow - Car Park held to be too extensive.

    • Copeland vGreenhalf [1952] Storage of farming equipment held to be too extensive.

    • Wright v Macadam[1949] Allowed to store coal on land.

  • Obiter in Moncrieffe v Jameson (Scotland)

    • Use can still be an easement so long as the servient owner retains control of their land. Not precedential but implies more extensive easement rights.

Express Creation of an Easement:

• 1) A deed of grant is drawn up (s. 52 LPA 1925 - legal) or a written contract (equitable) – usually this is for a fee.

• 2) Owner sells part of his land, as part of the conveyance will be a clause granting an easement. This is then registered (s.27 LRA 2002)

Implied Creation of Easements:

• Four methods

  • 1) Easements of necessity

  • 2) Common Intention

  • 3) Section 62 LPA

  • 4) The rule in Wheeldon v Burrows

• All begin with land owned by A (freehold or leasehold) who then sells part of his land.

• Impliedly granted (A keeps the servient land) or impliedly reserved (A keeps the dominant land)

1) Easements of necessity

• Must be completely impossible, not just advantageous, to use the land without the easement. This is a very strict test.

• Nickerson v. Baraclough [1981] – In 1906 land sold off in plots without any easements. By 1973 this had become landlocked, plaintiff bought it.

  • HoL held that no easement as when the land was divided express that no right of access was granted.

• Manjang v Drammeh (1991) PC confirmed that “an available access by water, albeit perhaps less convenient than access across terra firma is sufficient to negative any implication of a way of necessity.”

• Walby v Walby (2012) - facts had to be such that the retained land could not be used at all without the implication of an easement.

• No case on disability discrimination.

2) Common Intention

• Implied into the transaction those easements which are required to carry into effect the common intention for which the land was sold.

• Wong v Beaumont Property Trust [1965] – X sold to Y in order for Y to be able to open a Chinese restaurant. Y realized that they needed an easement to run a ventilation shaft. Not absolutely necessary as could have had the pipe shifted

  • Court implied this into the conveyance.

• Stafford v Lee (1992) – X sells to Y knowing that Y intends to build a house. But the right of way was so small that construction vehicles could not get to the house.

  • Therefore implied easements for construction vehicles.

• Linvale v Walker [2016] - use of a right of way out of an emergency fire exit in a business park could be implied by common intention as it was necessary to give effect to the common intention to have the land fully occupied and used for maximum profit.

  • This slightly extends the law.

3) Section 62 LPA

• Not explicit but has been a generously interpreted provision.

• Purchaser gets as easements all of those rights which the seller previously enjoyed over the land retained for the benefit of the land sold.

• Conditions:

  • 1) The transfer must be by a “conveyance”: hence it must be the transfer of a estate by deed (legal easement results)

  • 2) The rule can be excluded by clear words.

  • 3) Only easement like rights can become easements.

  • 4) There must be use of the land immediately prior to the transfer of the alleged dominant land to the claimant, so that it is “enjoyed with” the land conveyed

• Only works to grant easements.

• It is not necessary for there to be “prior diversity of occupation”

  • Prior to Platt v Crouch [2003] this was a condition.

  • When the alleged easement is “continuous and apparent” (Wood v Waddington (2015).

    • e.g. a worn pathway is continuous and apparent.

    • In Platt it was a well used mooring point.

• This now makes s.62 overlap with Wheeldon v Burrows

4) The rule in Wheeldon v Burrows

• Same as s.62 except for two points (Thesseger J):

  • 1) Wheeldon v Burrows will apply to a legal or an equitable transaction (therefore slightly wider).

  • 2) Do not need prior diversity, but you do need the use to be ‘continuous and apparent’ and the use to be ‘reasonably necessary for the enjoyment of the part sold’

    • Uses term ‘quasi-easements’ – converted to full easements.

• Wood v Waddington seems to imply we don’t need Wheeldon and can just use S.62.

They may also be estoppel (but this sits outside of the main rules

How easements bind the dominant land:

• Easement is transferred automatically to the dominant land.

• It also benefits any leasehold for the duration of that leasehold.

• If an easement is created for the duration of a leasehold it will end with that leasehold.

  • Except: Wall v Collins [2007] Asserted that he had a right of way over a track which passed over one part of his property, as well as into and through the property of the respondent.

    • Wall buys the freehold on his 999 year lease. Theoretically this should kill his own...