#3526 - Easements - Land Law

EASEMENTS

• Definition

• A propriaryright to do something on servient land or to prevent something from being done on it

• E.g. right of way, right to light but no finite list

• Capable of binding Ps – a right in rem

• Can’t exist in gross

• Doesn’t have to be identified in the doc creating it – court will look @ surrounding circs

• Can’t be granted in advance of ownership (London Blenheim Estates Ltd v Ladbroke Retail Parks Ltd)

• Rule in Harris v Flower - dominant owner, who acquires additional land adjacent to/close by dominant land may wish to use existing easement of its benefit but will usually be unable to do so without committing trespass

  1. Is the easement capable of arising?(ReEllenborough)

1. Dominant &servient tenements

2. Easement accommodates the dominant servient

   • Benefits the land, not the owner personally

   • Moody v Steggles – commercial benefit doesn’t exclude it immediately but it must be necessary for proper use of land, not just the business. Dominant owner had right to advertise his pub/inn: accommodated dominant tenement b/cservient land situated in front of the pub.

     • Purely personal or commercial advantage won’t suffice

• Hill v Tupper - a canal company leased land behind canal and, when also rented out boats to be used there, Mr H objected. Held his exclusive right to put boats on canal wasn’t an easement but a personal advantage b/c P tried to set up, under the guise of easement, a monopoly which had no normal connection w/ordinary use of his land but was merely an independent business enterprise.

  • Right to use communal gardens satisfied the test in ReEllenborough b/c:

1. enhanced the value of property to some degree

• not decisive

2. physical proximity b/wservient& dominant tenements

• no objection to houses not immediately bordering the tenement but being slightly away

3. the benefit can be conferred on a no of different owners simultaneously or be taken advantage off

• Distinguish certainty of right to use communal gardens attached to dominant residential land v. uncertainty of a right to wander at will over large defined area.

• Although portrayed as questions of fact, these are value judgments made taking into acc. social conditions, technical advantages & accepted models of property use.

3. Dominant and servient owners are different people in s4eparate ownership & occupation

   • Can’t have an easement over own land

1. Tenements come into same ownership = easement extinguished/temporarily suspended

2. Dominant tenement is sold off = easement recreated via implied grant

4. The right is capable of forming the subject matter of a grant

1. Capable of being granted by deed

2. Grantor & grantee legally capable

• w/requisite capacity and title to create an easement

3. Right sufficiently certain – it’s clear what dominant owner can do & what’s the nature & extent of burden to which servient owner must submit

• No right to:

1. uninterrupted right to light, air, view

2. uninterrupted television reception (Hunter v Canary Wharf)

4. Places no positive burden on servient owner

• Requires him to merely allow dominant owner exercise his right w/out interference, not do something positive

• Doesn’t require him to keep the subject matter in repair

• Exception: prescriptive right to maintain a boundary fence

• NB: obligation may also arise by way of contract, tort or OLA 1984.

5. Doesn’t amount to exclusion of servient owner (the ouster principle)

• Distinguish

1. Easements

2. Possessory rights (i.e. joint user etc.)

• Copeland v Greenhalf - a repairer of vehicles unsuccessfully claimed easement by prescription over a strip of land belonging to G. He used it for 50 years for storing customers’ vehicles whilst they await repair/collection. Right claimed went outside any normal idea of easement and amounted to a claim to a joint user of servient tenement.

• Scope of ouster principle test is one of degree:canservient owner make ‘reasonable use’ of his land (London Blenheim Estates)

• Miller v Encer Products – no objection to a grant of using lavatory although servient owner would be excluded from using it during that time

• Does it leave the servient owner in possession & control (Lord Scott in Moncrief v Jameson – allows extensive easements!

• Law Comm. criticised best to use “reasonable use” test & remember to be flexible

  2. Has it arisen?(by way of either)

1. ExpressGrant

   • Legal easement by deed

• if post Oct 2003, deed must be registered (s27 LRA 2002), benefit of easement recorded in property register of dominant land, burden in the charges register of servient land

  • Equitable easement in writing, agreement or estoppel

• A matter of construction gen. principle: in absence of strong evidence of contrary intent, the language of the grant is to be construed most strongly against the grantor

• General rule: expressly created easement can’t be subsequently used for a purpose wholly different from that initially envisaged

  • 2 principal ways:

1. Servient& dominant tenements are in different hands, A grants B an easement

1. legal interest = deed

2. equitable interest = writing

2. Land is owned by potential servient owner, he sells it to another, easement included in the sale

1. registered disposition = legal easememt

2. made by written contract = equitable easement

2. Implied

• Usually acquired in this way where land is subdivided into 2 or more parts by sale or lease

• Takes effect as legal easement, as long as it’s implied into a lease or a deed

• 4 ways of implication

1. Easements of Necessity - only implied where land can’t be otherwise used at all (e.g. access to public highway)

• Very high degree of necessity – if there’s alternative way of access, however inconvenient or impractical, it won’t be implied

• Land must become landlocked when common owner sells/leases a part of it

• Requirements:

1. common owner of legal estate in 2 plots of land

2. access b/w one of the plots & public highway can be obtained only over the other plot

3. a disposition in one of the plots w/out specific grant/reservation of a right of access.

• the basis lies in intention derived from agreement, not public policy so won’t arise in adverse possession or compulsory purchase

• will give way to contrary intent

2. Easements of Common Intent- reasonable enjoyment of land forcommonly intended purpose

• Granted in 2 kinds of cases (Lord Parker)

1. necessary for enjoyment of some other expressly granted right

• Wong v Beaumont Property Trust Ltd – Mr W leased a basement of a building to use as Chinese restaurant; lease provided W should control/eliminate smells, comply w/health regulation, not cause any nuisance to landlord/adjoining occupiers. Existing ventilation system was inadequate, larger flue required - landlord objected but easement implied to enable him to comply with obligations under the lease.

2. ad hoc–implied if necessary to give effect to common intent of parties w/ref to manner & purpose in/ for which the land granted or retained by grantor is to be used

• the intended manner of use must be definite & particular).

• Process of proof (Nourse LJ)

1. Establish on balance of probabilities nature of intended use – ascertain intent by using the test of necessary inference (Jenkins)

2. Prove that easement claimed is necessary to give effect to that use

• Re Webb’s Lease - Webb ran a butcher’s shop on the ground floor of the building leased in South London. He sublet upper floors, advertisement displayed on external walls. For many years, tenant of upper floors raised no objection but then demanded a payment for them to be retained.

• Some degree of overlap between easements of necessity and easements of common intent but that latter applies to wider range of rights than just rights of access to which former is largely confined.

3. Quasi Easements (Wheeldon v Burrows) - applies on sale/lease of part of property when certain qualifying rights, enjoyed for the benefit of the part sold/leased over the part retained mature into easements (prior to thatthey don’t exist b/c of common ownership)

• Rule based upon intent of parties that grantor shouldn’t derogate from his grant

• gives way to contrary intent

• Doesn’t imply a reservation

• Requirements:

1. enjoyed & exercised at the time of sale or lease

• not strictly applied (10 months gap sufficient)

2. continuous (exercised whenever necessary)

3. apparent (discoverable from reasonably careful inspection of land)

• some feature signalling its existence)

4. reasonably necessary for enjoyment of the property

• necessity req. lower than in easements of necessity but exact degree not clear

• existing means of access won’t prevent the claim but merely providing a more convenient access is unlikely to be enough (Wheeler v JJ Saunders) alternative access should offer additional advantage (Borman v Griffith)

• Unclear if a, b and c are synonymous or cumulative but latter is more strongly advocated (Gardner)

4. By operation of s62 LPA 1925 - only applies where there is prior diversity of occupation of dominant and servient land – typically, the other person’s a tenant (Sovmots v Secretary of State)

• Implies a general words clause into conveyances of land to ensure that, on sale/other disposal, all rights & privileges appurtent to land will pass w/out mention

• s long as there’s no contrary intent)

• Could only operate where there’s been a creation/ transfer of legal right in a deed but extended by judicial interpretationwill pass existing easements and operate to upgrade a mere permission into a fully-fledged statement

• Wright v Macadam - W, weekly tenant of 2 rooms on top floor of M’s house; M...