#14645 - Easements - GDL Land Law

_______________________________________________________

General Principles

Easements are almost single-use rights to do something:

• Contrast leases, which give you the right to exclusively possess or to mortgage, and that gives the bank control over the land if you don’t pay them back

They are critical in land use and many properties are subject to an easement; they are in every modern housing estate and and the consequence of properties packed closely together.

• Contrast with licenses, which are personal permissions that can be withdrawn & will only affect the person that’s given them: an easement is a personal property right enjoyed by one piece of land over another piece

They are much more powerful than a personal right. Infringing an easement will result in damages or an injunction.

Usually easements do not impose a positive burden on the land that is subject to them; they are usually passive i.e. the RP must let B walk over or park etc on their land. Some exceptions to this rule, however; for example the easement of fencing which requires the person subject to the easement to build a fence (Crow v Wood) or to generate electricity (Cardwell v Walker)

Regency Villas v Diamond Resorts (2015)

Held: (HC) recognises that an easement may, in appropriate circumstances, be for a purely recreational purpose

Common easements

• Right of way

• Right of light

• Right to park

• Rights of air traffic (Dowty Bolton Paul v Wolverhamption Corp)

• London and Blenheim v Ladbroke – right to cross land with shopping trolleys!

Characteristics of an easement

Re Ellenborough Park

Rights to enjoy the parkland were granted to surrounding house owners – the War Office took possession of the land during WWII and thereafter sought to pay compensation to the surrounding homeowners. The original owners of the land challenged the compensation & argued that the homeowners were licensees, denying the existence of an easement (which would give them proprietary rights)

Held: easement found.

• Lord Evershed MR: there are 4 essential characteristics of an easement proper. (1) dominant and servient land (see below), (2) these two pieces of land must be owned by different people, (3) the right must ‘accommodate’ the dominant land, and (4) the right must ‘lie in grant’ i.e. it must be capable of being an easement, by following formalities

Dominant and servient tenement

Easements do not exist in gross i.e. without a piece of land benefiting (for example a highway right exists in gross i.e. you don’t need to have a piece of land to benefit) (Hawkins v Rutter). An easement requires two pieces of land to exist (Bratt’s Ltd v Habboush):

Land A Land B

Benefit Burdened

Dominant Servient

Land B does not need to maintain the right of way or whatever the right entails (William Old International v Arya)

This benefit becomes pertinent to the land i.e. it attaches to the land and therefore transfers with it. This is also true of the burden subject to the rules of registration.

London and Blenheim v Ladbrooke – both pieces of land need to be identifiable at the time of creation

Separation of dominant and servient tenement

This can be as a landlord/tenant relationship (Borman v Griffiths)

If dom & serv come into the same occupation then the easement is suspended until separation (Canham v Fisk)

Easement accommodating the dominant tenement

The dominant tenement must receive some proprietary benefit. This is accompanied by the following presumptions:

• Physical proximity between dom & serv (Bailey v Stephens)

• The right mustn’t be purely personal in its nature

  • Hill v Tupper

Claim that a right to put pleasure boats on a canal amounted to an easement

Held: couldn’t amount to an easement as the right isn’t intrinsically connected to the land

• Moody v Steggles

Right to hang pub sign on neighbour’s wall

Held: the right itself is proprietary, so the fact it confers a commercial benefit alongside this essential factor doesn’t affect its proprietary characteristic

Capable of forming the subject matter of a grant

The right must be clear and certain enough, so that it could rightly have been ‘granted’:

• Capable grantor & grantee (exceptions for charities, minors, lunatics & limited companies)

• Sufficient clarity of subject matter – essentially to ensure that the servient tenement knows what the dom is allowed to do on their land

  • Re Aldred found that a ‘good view’ was too vague

• Usually will need to be a right which is already recognised as capable of being an easement

  • Moncrieff v Jamieson – particular reluctance to establish new easements when there is a requirement to pay money/amounts to a positive obligation (William Old International v Arya)

• Dom shouldn’t get too much control over serv’s land so that it might equate to ownership

  • Grigsby v Melville – no right to store in a cellar

    • HOWEVER Wright v Macadam – allowed coal storage in a shed as it was a small space & a practical arrangement

  • Harina v Morland – no right to use roof

  • Copeland v Greenhalf – no right to store tools as the impact was too great on serv land

  • There is a debate, however, about what the standard of control is. In Moncrieff v Jamieson Lord Scott suggested that the serv owner needs to retain possession and control of the land, which contrasts Lord Neuberger’s view in Batchelor v Marlowe that the serv owner needs to retain reasonable use of their land

Creating an easement

• Expressly: people enter into binding legal agreements with each other to create easements. Usually by deed. If not, and it is created in writing, this will give rise to an equitable easement

• Impliedly:

  • Necessity

  • Common intention

  • S.62 LPA 1925

  • Wheeldon v Burrow

Claiming easement for light through windows which D was going to block

Held: not necessary for enjoyment of the land as a whole – the ‘Wheeldon v Burrow ‘ rule is accordingly that a grantee will take the land including quasi-easements which are necessary for the enjoyment of the land as a whole

• Thesiger LJ: “two propositions may be stated as that I call general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the...