Easements:

Front 1

Accomodating the DT:

Canal for pleasure boats

Back 1

Hill v Tupper (1863) - the right to put pleasure boats on the canal for profit

Does not benefit DT - services carried out entirely on the ST - C benefits whether or not he owned land at all.

Front 2

Easements:

Back 2

Certain limited rights that one landowner may enjoy over the land of a neighbour:

Right to park Kettel v Bloomfold (2012)

Lighting and exit signs: Bratt’s Ltd v Habboush

Right of way/right of drainage: William Old Internation v Arya

Front 3

William Old International v Arya (2009)

Back 3

ST need not pay for the upkeep of the right of way or drainage channel or take other positive steps to facilitate the easement.

Front 4

Not easily defined:

Back 4

If simply defined and many types of rights may exist as easements, lands could find themselves incredible overbudened and the enjoyment of the owner’s own land is seriously disrupted.

Front 5

Four Requirements:

Back 5

Re Ellen Borough Park (1956) per Evershed LJ:

Must be a DT and an ST

Diversity of ownership or occupation

Alleged easement must accomodation (benefit) the DT

Capable of forming the subject matter of grant

Front 6

Four Requirements insufficient

Back 6

Easements also need to be created by the appropriate formalities - generally, deeds (maybe even registration)

For equitable easements, done by writing (written instrument) or a claim for Promissory Estoppel

Front 7

Must a DT and an ST

Dominant Tenament: Benefits

Serviant Tenament: the land the right is exercised on

Back 7

Both must be identified at the time easement was created - if not identified, creation is impossible

London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (1992)

Front 8

Proprietary Rights

Back 8

Easements are rights attached to land - not mere personal advantages or advantages on particular people

Wall v Collins (2007) - sufficient there is a DT currently benefitting even if original DT no longer exists.

(Argued: the leasehold become a freehold, original DT which the easement was attached no longer existed and thus easement extinguished.

Front 9

Proprietary Rights

Back 9

Easements are rights attached to land - not mere personal advantages or advantages on particular people

Wall v Collins (2007) - sufficient there is a DT currently benefitting even if original DT no longer exists.

(Argued: the easement is extinguished because the original DT which it was attached no longer existed)

Front 10

Sepration of DT and ST:

Diversity of Occupation / Ownership

Back 10

Must not be owned and occupied by the same person.

Wright v Macadam (1949)

Bratt’s Ltd v Habboush (1999)

Tenants can enjoy easements over whole lands still owned by landlord - diversity in occupation, need not be ownership

Front 11

“Bruton tenants”

Bruton v London and Quadrant (1999)

Back 11

No estate in land (non-proprietary lease), so any rights that this occupier might enjoy over the land of their “landlord” (licensee himself - no estate in land)

Any rights that this occupier enjoys can only be licences effective in contract between parties

No easements can arise.

Front 12

Accomodates the DT:

Basically: Benefits

Back 12

Attached to land - not to person

Concerned with the user of the land, the value of the land or mode of occupation of the land.

Bailey v Stevens - distance is important - the further DT and ST are from each other the harder it is prove benefit

Front 13

Martin Dixon: Test for Accomodating

Back 13

Test - whether the alleged easement is so connected with the land that the benefit accrues to the current owner because he owns an estate in the land.

Front 14

Accomodating the DT:

Canal for pleasure boats

Back 14

Hill v Tupper (1863) - the right to put pleasure boats on the canal for profit

Does not benefit DT - services carried out entirely on the ST - C benefits whether or not he owned land at all.

Front 15

Accomodating the DT:

Right of Signage

Back 15

Moody v Steggles (1879) - the right to hang advertising signs on the ST benefitted the DT

Increased the value of DT by attracting more customers - Cl. only benefits because he owns the advertised pub.

Front 16

Accomodating the DT:

Moor boats for a hotel

Back 16

Platt v Crouch (2003) - right to moor boats on the riverbank conferred a benefit to the Hotel.

Front 17

Accomodating the DT:

Vague and general “recreational use” unlike to be an easement

Back 17

Re Ellen Borough Park - enclosed private park (allowed)

Regency Villas v Diamond Resorts (2015) - easements to use golf course, tennis and squash courts, putting green and outdoor swimming pool (allowed)

Defined use of land - not use of facilities. (Gym, sauna, sunbeds - not easements)

Front 18

Capable of forming subject matter of grant:

Back 18

Capable grantee and grantor needed:

Decided examples of capable: Borman v Griffith - right to park

Newman v Jones - right to underground piping

Front 19

Capable of forming subject matter of grant: Cannot overburden the ST

Back 19

Right should not result in the ST owner losing all measure of occupation and control over the land

Batchelor v Marlowe (2001) - right to park several cars on ST - cannot be easement

R Square Properties v Nissan Motors (2014) - court allowed easements to park 80 cars - did not complete deprive owner of reasonable use of land (size of the lot)

Front 20

Batchelor v Marlowe (2001)

Back 20

Easements on the ST should not have an “impact too great and inconsistent with the limited nature of easements.”

Front 21

2 Schools of Thought:

Reasonable Use

Back 21

R Square Properties v Nissan Motors - demonstrates that the question is “whether the defendant is left with reasonable use of his land”

Front 22

2 Schools of Thought:

Reasonable Use

Back 22

R Square Properties v Nissan Motors - demonstrates that the question is “whether the defendant is left with reasonable use of his land”

Front 23

2 Schools of Thought:

Possession and Control

Back 23

Moncrieff v Jamieson (2007) - Lord Scott (obiter) - whether the owner has possession and control of the land.

Front 24

The true test remains:

Back 24

Law Commission Report no.327, “Making Land Work” agrees that Batchelor and reasonable use are good law.

The law must remain flexible in the face of changing patterns of land law.

Even if it does not confer exclusive possession, it could very much unreasonably prevent ST owner’s use of land.

Front 25

Examples of Easements:

Back 25

Wright v Macadams - right to store coal in a small part of Landlord’s coal shed.

Front 26

Creation of Legal Easements:

Back 26

Only if held adjunct to a FSAIP or TOYA (s.1 LPA 1925) - only capable if attached to a DT that is freehold or leasehold estate.

Created only by statute, deed or registered disposition or prescription.

Front 27

Creation of Legal Easements:

Back 27

Only if held adjunct to a FSAIP or TOYA (s.1 LPA 1925) - only capable if attached to a DT that is freehold or leasehold estate.

Created only by statute, deed or registered disposition or prescription.

Front 28

Statutorily created easements:

Back 28

Generally for public reasons: not in syllabus

NOTE: Creation by statute does not refer to the creation of easements under s.62 LPA 1925

Front 29

Legal Easements: created by deed (unregistered land) or registered disposition (registered land)

Back 29

Unregistered land - deed is sufficient

Registered land - must enter on title of ST in order to take effect as legal interest - substantively registered (s.25 and s.27 LRA 2002)

Failure to do results in equitable interest - s.27(1) LRA 2002

Front 30

Legal Easements: created by deed (unregistered land) or registered disposition (registered land)

Back 30

Unregistered land - deed is sufficient

Registered land - must enter on title of ST in order to take effect as legal interest - substantively registered (s.25 and s.27 LRA 2002)

Failure to do results in equitable interest - s.27(1) LRA 2002

Front 31

Equitable Easements:

Back 31

Created by written instrument and signed by both parties - s.2 LP(MP)A 1989

Operation of Promisory Estoppel - oral agreements not possible as per the above - but may still be inferred through PE

Front 32

CREATION OF EASEMENTS:

Express Creation

Back 32

Grant - straightforward: A to B or Include in the sale / lease the easement (seller becomes ST and the new owner becomes DT)

Reservation - straightforward (expressly reserved the right in the sale documents)

Conveyance by deed - Legal Easement

Coveyance by signed writing - equitable easement

Front 33

CREATION OF EASEMENTS:

Express Creation

Back 33

Grant - straightforward: A to B or Include in the sale / lease the easement (seller becomes ST and the new owner becomes DT)

Reservation - straightforward (expressly reserved the right in the sale documents)

Conveyance by deed - Legal Easement

Coveyance by signed writing - equitable easement

Front 34

Implied Creation:

Back 34

If implied into a deed, legal easement

If implied into a signed written contract, equitable easement

Front 35

Implied by Necessity:

Grant and Reservation

Back 35

Wong v Beaumont (1965) - easement of ventilation was necessary (land was sold to purchaser intending to run a restaurant)

Front 36

Implied by Necessity:

Must be a real necessity - not convenience

Back 36

Re MRA Engineering - no necessity for driveway (could still access by foot)

Manjong v Drammeh - land was still accessible by navigating a river (no necessity)

Walby v Walby (2012) - even if there was unreasonable use of land was shown (no necessity) - strict test: land cannot be used at all

Front 37

Implied by Necessity:

Must be a real necessity - not convenience

Back 37

Re MRA Engineering - no necessity for driveway (could still access by foot)

Manjong v Drammeh - land was still accessible by navigating a river (no necessity)

Walby v Walby (2012) - Strict Test: Land must be completely unusable without easement

Front 38

Implied Reservation: Necessity

Back 38

Seller has burden of proof to show the necessity to preserve the right.

Re Dodd - alternative route defeats the claim even if inconvenient

Sweet v Sommer (2004) - granted (was necessity) - alternative route only accessible by destruction of physical that both parties agree should remain.

Front 39

Implied Reservation: Necessity

Back 39

Seller has burden of proof to show the necessity to preserve the right.

Re Dodd - alternative route defeats the claim even if inconvenient

Sweet v Sommer (2004) - granted (was necessity) - alternative route only accessible by destruction of physical barrier that both parties agree should remain.

Front 40

Implied by Common Intention:

Common intention of the parties that the land granted / reserved should be used in some definite or particular manner and, whether it is necessary to give effect to that intention.

Back 40

Stafford v Lee (1993) defendant sold land to claimant with the view to the construction of a house - easement for right of way for purposes of construction granted

Linvale Investments v Walker (2016) - common intention the land be used to maximize profits (Easement granted) - Defendant not allowed to derogate from the purpose of the purchase.

Front 41

Easement Implied by Wheeldon v Burrows Rule

Only for Grants

Back 41

When a person transfers a part of their land to another, that transfer impliedly includes the grant of all quasi-easements that the seller used and enjoyed prior to the transfer for the benefit of the part transferred.

(Only if DT is sold)

Front 42

Easement Implied by Wheeldon v Burrows Rule

Only for Grants

Back 42

When a person transfer the land to another, that transfer impliedly includes the grant of all quasi-easements that the seller used and enjoyed prior to the transfer for the benefit of the part transferred.

(Only if DT is sold)

Front 43

Easement Implied by Wheeldon v Burrows Rule

Only for Grants

Back 43

When a person transfer the land to another, that transfer impliedly includes the grant of all quasi-easements that the seller used and enjoyed prior to the transfer for the benefit of the part transferred.

Only if those rights were continous and apparent and necessary for reasonable use and enjoyment of land.

(Only if DT is sold)

Front 44

Quasi-easements defined:

Back 44

Certain benefits that would have been actual easements had the two pieces of land been owned by different people.

(DT and ST that were once owned by the same person)

Front 45

Quasi-easements defined:

Back 45

All rights in the nature of easements, that would have been actual easements had the two pieces of land been owned by different people.

(DT and ST that were once owned by the same person)

Front 46

Continuous and Apparent:

Back 46

If any use cannot be proven, it is fatal: Alford v Hannaford

Quasi-easement must be enjoyed by owner, agent, alter ego or anyone acting under his direction or permission - Hillman v Rogers

Front 47

Continuous and Apparent:

Back 47

If any use cannot be proven, it is fatal: Alford v Hannaford

Quasi-easement must be enjoyed by owner, agent, alter ego or anyone acting under his direction or permission - Hillman v Rogers

Front 48

Continuous and/or Apparent

Back 48

Wood v Waddington - CoA believes both requirements must be satisfied i.e. used regularly and visible on inspection of the SLand.

Millman v Ellis (1996) - lay-by covered in tarmac was evidence of continuous and apparent use

Hillman v Rogers - Continuous or apparent

Front 49

“Continuous” defined

Back 49

Continuous does not mean “in continuous use”

It means regularly use in an uninterrupted manner (Wood v Waddington (2015)

Front 50

Quasi-easements under Wheeldon v Burrows - not of necessity, but of reasonable enjoyment of land

Back 50

Millman v Ellis (1996) - lay-by as part of the right of way made passage considerably safer - established contribution to the reasonable use and enjoyment of the land

Front 51

Quasi-easements under Wheeldon v Burrows - not of necessity, but of reasonable enjoyment of land

Back 51

Millman v Ellis (1996) - lay-by as part of the right of way made passage considerably safer - established contribution to the reasonable use and enjoyment of the land

Was no where near necessary

Front 52

Almost equated as “necessity”

Wheeler v JJ Saunders (1995)

Back 52

Court almost equated “necessity” and “necessary for reasonable use.”

Held: the right of way was not needed because of other alternative routes (also true, in a sense, as that specific route isn’t needed for reasonable use and enjoyment of land because other routes already provide that)

Hillman v Rogers (1998) affirms: should not be equated to necessity

Front 53

Implied by reaction of s.62 LPA 1925

Only for Grant

Back 53

Conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey [a number of things that included] easements, rights and advantages whatsoever, aspertaining or reputed to appertain to the land, or any part thereof

Front 54

Implied by reaction of s.62 LPA 1925

Only for Grant

Back 54

Conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey [a number of things that included] easements, rights and advantages whatsoever, aspertaining or reputed to appertain to the land, or any part thereof

Front 55

s.62 LPA 1925: “conveyance of land”

Back 55

Means the grant of legal estate and includes a legal freehold and legal leasehold

(Section is triggered by use of deed (except for <3 year leases) and not “mere” written instrument

Front 56

Implied by reaction of s.62 LPA 1925

Only for Grant

Back 56

Conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey [a number of things that included] easements, rights and advantages whatsoever, aspertaining or reputed to appertain to the land, or any part thereof

Front 57

s.62 LPA 1925: “conveyance of land”

Back 57

Means the grant of legal estate and includes a legal freehold and legal leasehold

(Section is triggered by use of deed (except for <3 year leases) and not “mere” written instrument

Front 58

s.62 - similar to Wheeldon v Burrow

Back 58

Only rights instrinsically capable of being easements may be impliedly created by virtue of s.62

Hair v Gillman - mere permission to park can become an easement by way of s.62

Front 59

s.62 - similar to Wheeldon v Burrow

Back 59

Only rights instrinsically capable of being easements may be impliedly created by virtue of s.62

Hair v Gillman - mere permission to park (advantage) can become an easement by way of s.62

Rule’s application can also be excluded by express words

Front 60

s.62 - similar to Wheeldon v Burrow

Back 60

Only rights instrinsically capable of being easements may be impliedly created by virtue of s.62

Hair v Gillman - mere permission to park (advantage) can become an easement by way of s.62

Rule’s application can also be excluded by express words

Front 61

s.62 - “prior diversity of ownership” or “continuous and apparent”

Back 61

Long v Gowlett and Sovmots v Secretary of State for Environment - prior diversity in occupation and ownership is important

Platt v Crouch - previous diversity of occupation is not necessary as long as the use was “continuous and apparent.”

Front 62

s.62 - “prior diversity of ownership” or “continuous and apparent”

Tenants/licensees occupied the potential DT before it’s sold to them. They would purchase the property they occupy thus causing the easement to arise.

Back 62

Long v Gowlett and Sovmots v Secretary of State for Environment - prior diversity in occupation and ownership is important

Platt v Crouch - previous diversity of occupation is not necessary as long as the use was “continuous and apparent.”

Front 63

s.62 and Wheeldon: Differences

Back 63

Wheeldon - operates when common seller was in occupation of all the land before the sale of potential DT

s.62 - applies to same situation if “continuous and apparent” is proven - but wider, as it also applies to “prior diversity” situations not covered by Wheeldon

Front 64

s.62 and Wheeldon: Difference 2

Back 64

Wheeldon - creates rights only where it is “continuous and apparent” and “necessary for use and enjoyment of land”

s.62 - does not depend on “necessity of reasonable enjoyment” - (but does require continuous and apparent if there is prior diversity)

Front 65

s.62 is wider than Wheeldon v Burrows

Reminder: Only for Grant

Back 65

if the alleged easement is continuous and apparent (thus no need to prove prior diversity), s.62 may generate easement without having to show it's necessary for reasonable enjoyment of the land and therefore is more generous than Wheeldon

Wheeldon needs both C&A and necessary for reasonble use

Front 66

Chaudry v Yavuz

Back 66

Easements are a use of land, not an occupation upon it.

They cannot be overriding interests under Schedule 3 para 2