#2061 - What Can Be An Easement - Land Law

What can be an easement?

Examples

• Easement = right to do something on another’s land

  • OR (in a few cases) right to prevent something being done on another’s land

  • E.g. Rights of way, rights of light, rights of support

    • And any other rights which have been properly created.

Requirements:

• Re Ellenborough Park [1956]:

  • Evershed MR:

    • Four characteristics of an easement:

      • (1) there must be a dominant and a servient tenement:

      • (2) an easement must "accommodate" the dominant tenement:

      • (3) dominant and servient owners must be different persons, and

      • (4) a right over land cannot amount to an easement, unless it is capable of forming the subject-matter of a grant.

Dominant and servient tenements

• One piece of land must be adversely affected by the right (the servient land)

  • The other piece of land must benefit from the right (the dominant land)

    • Thus, you can’t have a right to cross someone’s land to reach a helicopter pad if you didn’t own the helicopter pad

      • Because you would have not land that benefitted from the right

        • And it therefore wouldn’t be an easement

    • Smith: is considered trite law, but no conclusive reason for this requirement.

  • Need not identify dominant tenement in easement document

    • But is good practise to indentify it to prevent confusion.

Accommodation

• Can’t just be a benefit to the people on the land

  • Must actually benefit the land or the way the land is used itself.

    • E.g. Easement for free Liverpool tickets benefits land owners but not land itself

      • Whereas easement for right of way across neighbour’s land to road benefits my land itself b/c makes access more convenient.

  • Re Ellenborough Park [1956]:

    • Evershed MR:

      • it is not sufficient to show that the right increased the value of the property conveyed,

        • unless it is also shown that it was connected with the normal enjoyment of that property

          • this is a question primarily of fact.

• In business use

  • Moody v Steggles [1879]: For 50 years, a sign board had hung against D’s house advertising C’s public house. D attempted to remove the signboard.

    • Fry J:

      • Fact that the easement in question benefits a business purpose does not automatically disqualify it from being granted.

      • Fact that the occupant only uses the house for the business which he pursues,

        • Means the easement is more or less connected with the mode in which the occupant uses the house and therefore should be granted.

  • Hill v Tupper [1863]: C negotiated with X that he would exclusive use of the canal for pleasure boats. D subsequently came along and also used the river for this purpose. C sued D.

    • Pollock B:

      • Can’t create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee.

        • This grant merely operates as a licence or covenant on the part of the grantors (X + C),

          • And gives C no right of action in his own name against any other party who infringes this right

  • McFarlane: C in Hill was attempting to use easements to craft exclusive business on another’s land unrelated to the use of his own land, whereas C in Moody was using land for purpose related to his own land – i.e. a business.

Different owners/occupiers of dominant and servient tenements

• Person can’t have easement over own land

  • But isn’t fatal that same person holds fee simple in both plots

    • E.g. Landlord and tenant: tenant has easement over landlord’s adjoining land.

• But if land falls into common ownership, all easements are extinguished and must be re-granted if land then falls into differing ownership again.

• Scot Law Com:

  • Where two plots w/ easements fall into common ownership

    • Easements should not be extinguished

      • But should become “latent” until plots fall back into common ownership.

Right = “capable of grant”

• A) Capable of clear definition

  • If a right in unspecific and vague, it can’t be an easement

    • E.g. Smith: might explain why “rights to view”, rights to privacy etc. have not been considered easements.

• B) Imposes no positive obligation on servient owner

  • Positive obligations can be imposed by contract or covenant, but these won’t last with a new purchaser

    • Easements, which do last from purchase to purchase, cannot impose any positive obligation

  • Rance v Elvin [1985]: S conveyed land to C w/right of uninterrupted supply of water thru S’s pipes. S sold to M, M needed to pay via meter for supply of water to flow. M argued no easement b/c positive obligation to pay for water supply so could flow through pipes.

    • Browne Wilkinson LJ

      • C claiming a right to the uninterrupted passage of any water that may come into the pipes under M's land

        • NOT a right to a supply of water;

      • Thus M need only not take action to interrupt supply to avoid infringement – if supply fails not b/c of M, then M fine.

        • Thus, this imposes no positive obligation on M, only a negative obligation.

        • If the supply is cut off b/c M fails to pay, that’s not a problem.

      • However, C must pay his share of the costs of the water.

  • The exception

    • This is where there is a leasehold covenant with the leasehold being the dominant tenement – here positive obligations can run (Liverpool CC v Irwin)

• C) No new negative easements

  • Positive Easements: Most easements allow Dom do something to Serv’s land or on Serv’s land

  • Negative Easements: Some rare easements stop Serv from actually doing certain activities on their land

    • E.g. right to light (stopping Serv from doing any activities which would block Dom’s light)

      • Court reluctant to grant any new negative easements however – you need to use restrictive covenants (which can’t pass by prescription so are virtually never implied)

  • Phipps v Pears [1956]: D pulled down house, lead to C’s house wall being exposed to weather, caused damage.

    • Lord Denning MR:

      • A right to protection from the weather (if it exists) is entirely negative.

        • It is a right to stop your neighbour pulling down his own house.

      • Law is very wary at creating new negative easements, however

        • B/c if such an easement were to be permitted,

          • it would unduly restrict your neighbour in his enjoyment of his own land.

  • Ress v Skerrett [2001]: Similar case to above.

    • Lloyd J:

      • Is true that the right to be protected from weather is neither a positive or negative easement

        • Because what it does is force Serv to take some action.

      • However, with the easement of support, this is a negative easement

        • Thus Serv could not withdraw support w/o replacing it with an equivalent,

          • which here Serv failed to do

• D) No claim to possession

  • Easements cannot support a claim to exclusive or joint occupation

    • i.e. that Dom can oust Serv from Serv’s land while the easement is being exercised

      • or that Dom can use Serv’s land in the same ways as Serv w/o owning it.

  • The general rule?

    • Copeland v Greenhalf [1952]: C, owner of orchard could access land via strip of land. D parked vehicles so almost entirely covered strip. D claimed easement to do so.

      • Upjohn J:

        • A right ought not be recognised as an easement

          • where practically, X is claiming the whole beneficial user of the servient tenement

            • Meaning it is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner;

        • Wide unrestricted rights can be created by covenants but not by easements

  • An exception – the right to storage

    • AG of Southern Nigeria v John Holt

      • Held Privy Council

        • Their lordships see no reason why the law of easements should be exclusive of the right to storage

          • The law must move with the times and conditions of modern trade.

  • No exclusion for a communal garden

    • Mulvahney v Gough: D allowed C and others, who lived in cottages nearby, to use some land C had a right of way over as a communal garden. D later, in order to build a gravelled path, demolished a flowerbed C had tended, which rather upset C.

      • Latham LJ

        • In Ellenborough, the right to use land as a communal garden was recognised as a right capable of grant by easement

          • Thus, since D appeared content to set aside the land for the use of a communal garden and for C and others to determine its layout

            • An easement could properly be said to have come into existence.

        • Thus, though this does not bar D from putting a gravelled track on his land so long as it does not unreasonably interfere with the use granted by the easement

          • It does mean that D should have given C the opportunity to move the flower beds’ contents before gravelling them over.

  • The right to use a toilet, even though more frequent use and used in same way as servient tenement holder

    • Miller v Emcer Products Ltd [1956]: L grants C use of toilets on upper floors of X. X stops C from using one of the toilets.

      • Romer LJ:

        • Fact that when Dom exercises easement right Serv owner would be excluded

          • Is not fatal to a claim necessarily [presumably as long as not continuous exclusion?]

        • B/c to greater or lesser degree this is a common feature of many easements (for example, rights of way)

          • and does not amount to such an ouster of the servient owner's rights.

  • Reasonable use?

    • Permitted in Wright v Macham to use a coalshed, but point not directly discussed, not cited in Copeland.

      • Smith: seems to exclude O from it....

    • London Blenheim –

      • Baker QC

        • It’s all a...