#17396 - Easement Notes 1 - Property Law

What is an easement?

• Easements are incorporeal hereditaments; they comprise certain limited rights that one landowner may enjoy over the land of a near neighbour.

• Every easement will involve two separate pieces of land.

• Dominant tenement: the benefited land, enabling the owner of that land to use the easement.

• Servient tenement: the burdened land, requiring the owner of that land to suffer the exercise of the easement.

• An easement, once created, are proprietary in nature; it may be enjoyed or suffered by any subsequent owner of the dominant or servient land.

There are two types of easements:

1. Positive easements: is an easement that permits the owner of the dominant land to do something on the servient land (e.g use a path or run pipes over the servient land).

2. Negative easements: easements that limit what the owner may do on the servient land.

In essence what this means is that, the owner of the servient land may not be able to exercise certain rights because it may interfere with the right of the dominant land (e.g a right to light, the owner may not be able to erect a large tower).

Four essential characteristics of an easement - *Re Ellenborough Park (1956) :

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

2. The dominant and servient tenements should be owned or occupied by different persons. E.g Metropolitan Railway Co v Fowler [1982] 1 QB 165.

3. The alleged easement must accommodate (i.e. benefit) the dominant tenement.

• Regency Villas v Diamond Resorts [2018] UKSC 57; [2018] 3 WLR 1603, paras.[39]-[42] and [57]

• Moody v Steggles (1879) 12 Ch D 261

4. It must be capable of forming the subject matter of a grant.

• Moncrieff v Jamieson [2007] UKHL 42, [2007] 1 WLR 2620

• Coventry (t/a RDC Promotions) v Lawrence [2014] UKSC 13, [2014] 2 WLR 433

• Regency Villas

• Satisfying all of these criteria means that it is capable of being an easement.

• The right must be created as an easement using the appropriate formalities.

• Legal easement: deed (plus registration in some cases) or prescription.

• Equitable easement: enforceable written instrument or proprietary estoppel.

• Confines the ambit of easements to rights that truly benefit other land, as opposed to merely benefiting a particular person.

Crow v Wood [1971] 1 QB 77

• Denning MR: a right to have your neighbour maintain fences = a right in the nature of an easement

• Hence it can pass under s.62

• An exception to the rule that you can only have an easement to do something yourself / prevent someone else doing something

Egerton v Harding [1975] QB 62

• Easement distinct from custom

• If you can establish immemorial usage of fencing as a matter of obligation, duty proved (so long as it could’ve come from lawful origin)

• Sharon LJ: Evidence the hedge was maintained was NOT enough – you have to show it was maintained as an obligation to the adjoining owner

• They reject the view of Edmund Davies in Crow v Wood that where land accustomed to be fenced, it being voluntary is immaterial

Liverpool CC v Irwin [1977] AC 239

• Tenants withhold rent in protest of poor conditions.

• HL found implied-in-law obligation to maintain common parts of towerblocks.

• Although this was fulfilled since Ds spent more on repairs than it received in rent.

• HL rejected Denning’s reasonableness approach in favour of necessity but reached the same result.

• Lord Atiyah said not much different: “necessary seems to mean reasonably necessary having regard to the context.”

• Subject matter of lease demanded some obligation on part of landlord.

confines the scope of easements to those rights that truly benefit other land, as opposed to merely benefiting a particular person

• Every easement is linked to two pieces of land

• An easement must exist in connection with a piece of land. It cannot exist independently (in gross, like a profit a prendre)

A profit is the right to make take something from another person’s land, e.g game, fish, turf, minerals and grazing by animals.

Identifying the Dominant Tenement :

London & Blenheim Estates ltd v Ladbroke Retail Parks ltd [1992]

Facts: The Leicestershire Co-op owned land in and around one of their stores in

Leicestershire to London & Blenheim Estates.

• the sale included the right to park cars on the remaining adjacent land which the Co-op still owned.

• Part of the agreement stated that if London & Blenheim Estates wanted to purchase more land, they were to contact Coop before they make the purchase, so that they are able to get similar parking rights for their new land.

• At some point, The Co-op sold its remaining land to Ladbroke. After that sale went through, London & Blenheim Estates purchased more land and wished to obtain parking rights for it.

Issue: The issue in the case was whether London & Blenheim Estates were able to obtain the extra parking rights they sought for the new land they had purchased.

Held: No easement as needs identifiable dominant and servient tenement before courts could grant or contract to grant an easement.

The court held that London & Blenheim Estates could not claim for new parking rights for the new land they had purchased. This was because the agreement had not properly identified the dominant tenement. Following Ashburn Anstalt v Arnold [1993] 4 All ER 157 certainty on the point of the dominant and servient tenement are of key importance to the establishment of an easement. Therefore, lack of such certainty is destructive to a claim of an easement.

Identifying the Servient Tenement

A right will not be an easement if it imposes an obligation over a very large and indefinite area. (Pwllbach Colliery v Woodman 1915).

The need for dominant and servient tenement limits the impact of easements on the servient land- so that not everybody is able to enjoy rights over the servient land- and confines the ambit of easements to those rights that truly benefit other land.

2nd Characteristic: An easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefits

Accommodate in this context means benefit (i.e confer a benefit on the dominant land).

Lord Evershed in Re Ellenborough Park emphasised that:

“an easement accommodates and serves the dominant land, is reasonably necessary for the reasonable enjoyment of the that land , for if it has no necessary connection therewith, although it confers an advantage upon the owner and renders his ownership more valuable, it is not an easement at all, but a mere contractual right personal to the two contracting parties”

Confines easements to those rights that attach to the land not ‘merely’ to the person who currently owns and occupies the land. (It must not be a personal benefit.

The general idea is that the easement must benefit the user of the land, the value of the land or the mode of occupation of the land (like the idea of touch and concern in restrictive covenants)

NB: there are no set criteria for judging whether an alleged easement is sufficiently proprietary in nature and each case must be decided on its own facts.

The following guidelines gives flavour of what is required under this characteristic, but there may be exceptions in peculiar or special circumstances

1) Geographical nexus: the servient tenement must be sufficiently proximate (i.e near) to the dominant tenement to be able to confer a benefit on it. For example, in order for a right of way over the servient land to benefit the dominant land, the plots of land are going to have to be close to each other. Thus, in this scenario the two tenements have to be adjacent, or share a common boundary to satisfy this requirement.

Nonetheless, in general the more physically separate the two properties, the less likely it is that a court would regard an alleged easement over one is benefiting the other.

Case law: Bailey v Stephens [1862] Byles J

“ you cannot have a right of way over land in Kent appurtenant

(belonging to) to an estate in Northumberland”

2) The alleged right must not confer a purely personal advantage on the owner of the dominant tenement: This is firmly fixed in case law.

Hill v Tupper [1863]

Facts: the plaintiff, Mr Hill, entered into a contract with the Canal company

• the owner of a canal granted the claimant (Mr. Hill) the right to put pleasure boats on the canal for profit

• The defendant, Mr Tupper, however also hired boats out on the same canal

• Mr Hill was minded to curtail the activities of Mr Tupper and thus started the action. (It was based on the claim that his rights under the contract with the Basingstoke Canal Company constituted an easement), which gave him property rights which he could enforce against Mr Tupper.

Issue: whether the contract granted to Mr Hill could be seen to have created a valid easement and therefore provided him with property rights.

Held: The court held that a valid easement could not be created in this way and that Mr Hill did not receive any property rights under the

Mr Hill therefore had no property rights which he could enforce against Mr Tupper and Mr Tupper could not be compelled, through this action at least, to cease hiring out boats on the canal. The Basingstoke Canal Company could, however, prevent Mr Tupper from hiring boats out on the canal by asserting its property rights and therefore Mr Hill’s proper course of action is to ask the Canal to do so.

NB: However, it is a mistake to think...