Easements

Front 1

What is an Easement?

Back 1

•A rightover someone else’s property;

•Can bepositive or negative in character

Positive: a right which enables its holderto do something on someone else’s land

Negative: a right which preventssomeone else from doing something on their own land);

•An interest in land, not a contract;

•Will pass with the land when the land is sold.

Front 2

In Re Ellenborough Park (1965)

No.1

Back 2

• The owners of Ellenborough Park and surrounding land sold some of the land to property developers
• The developers built on the land and sold various plots which included certain rights such as the right to enjoy the land
• In particular the pleasure ground - Ellenborough Park
• Yet this was subject to fair and just proportion of the costs, charges and expenses of keeping the ground in good order and condition.
  

Front 3

In Re Ellenborough Park (1965)

No.2

Back 3

• Over time the builders sold plots of land and the original owner died
• The claimant bought the park & tried to prevent the purchasers of the various plots from enjoying the use of the park.
  

Front 4

In Re Ellenborough Park (1965)

No.3

Back 4

• During the war, Ellenborough was requisitioned by the war office
• They paid £150 per year in compensatory rent
• At the end of Military occupation, they also paid the trustees £1770 for any dilapidations

Front 5

In Re Ellenborough Park (1965)

No.4

Back 5

After the war, the trustees went to court and asked the question:

Did the owners of the surrounding properties have an enforceable right to use the park in exchange for paying its upkeep.

No doubt builders had this right BUT had this passed to those who bought the land of them.

Front 6

Danckwerts J identified four essential qualities of an easement (at 140):

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1.There must be adominant and a servient tenement.

2.An easement mustaccommodate the dominant tenement, that is, be connected with its enjoyment andfor its benefit.

3.The dominant andservient owners must be different persons.

4.The right claimedmust be capable of forming the subject-matter of a grant.

Front 7

What is a Dominant and Servient Tenement?

Back 7

Dominant - Owner enjoys the easement

Servient - Owner bears the burden of the easement

Front 8

Origin of this requirement

Back 8

The basis forthis requirement is in

Ackroyd v Smith (1850) by Cresswell J

Only thoserights which are connected with the use or enjoyment of land can be easementsand thus attach to the land.

Front 9

Easements must accomodate the dominant

tenement.

Back 9

The easementmust be for the benefit of the land, rather than of benefit to a specificperson

Meaning - whoeverhappens to owns the land at the time, not a specific person

Front 10

Easements must accomodate the dominant

tenement.

In re Ellenborough Park

Back 10

In 'In reEllenborough Park', one of thecentral questions was whether there could be such a thing as an easement for‘recreation and amusement’, or whether this could only have been a licencebetween HD/JW and the original purchasers.

The Trustees argued:

It would notaccommodate the dominant tenement – having use of access to park did notbenefit the land.

Front 11

In re Ellenborough Park - Benefit the land

No.1

Back 11

Must be ' reasonablynecessary for the better enjoyment of that tenement'

Front 12

In re Ellenborough Park - Benefit the land

No.2

Back 12

Trustees argued: having access to ellenborough park was not resonably necessary for the better enjoyment of the properties (houses) of ellenborugh cresecent.

There was no such connnection between having access to the park and better enjoyment of the properties.

This would make it a contractual right – therefore could not be passed when sold through the builders.

Front 13

Hillv Tupper (1863)

Facts

Back 13

• The claimant had a lease of an area that fronted onto a canal.
  

• He was given the sole and exclusive right to put pleasure boats on it.

• He claimed that this right was infringed when the defendant, who owned a small inn on the canal, also put boats on it.

Front 14

Issues in Hill v Tupper

Back 14

Claimant argued that his right is aform on an easement – so the defendant he can not do this.

Question: what kind of ’benefit’ the courts will accept as beingrelevant to the question of whether a purported easement is for the ‘use andenjoyment of the land’.

Front 15

Hill v Tupper - Held:

Back 15

It was held that the right was no more than a licence as it did not;

• enhance the enjoyment of the land, but
  
• was merely incidental to the business run by the claimant

So the defendant had not infringed the claimants rights.

Front 16

In Re Ellenborough

• What kind of benefits will be sufficient to show it exists?

• In what way do you need to show that the right enhances the value of the dominant tenant?
  

Back 16

Evershed MR

Notenough to show that the value of the plot of land around the park was increasedby having access to the park.

Unlessit shownthat it was connected with the normal enjoyment of that property.

Front 17

Evershed MR - argument:

Back 17

Trustees argued – the use of the park was completely disconnected from the enjoyment of the houses as simply houses.

Evershed MR - yet the park was Ellenborough Park was, in effect, the (communal) garden of the surrounding houses.

Using a garden is plainly connected with the normal enjoyment of a house, if the house has a garden. The connection between the right to use the garden and the enjoyment ofthe house was therefore plain.

No doubt about the accommodation element of easements was satisfied.

Front 18

The dominant and servient owners must be separate people.

Back 18

This requirement is best explained on the grounds that it would make

little sense for someone to try to assert a right against himself.

Note that a landlord-tenant relationship can satisfy the ‘separate people’ requirement.

Front 19

The easement must be capable of forming the subject-matter of a grant

Back 19

• There must be a capable grantor and grantee
• the right itself must be sufficiently definite
• The right must be in the nature of an easement

Front 20

There must be a capable grantor and grantee

Back 20

Capable grantor - the grantor must own an appropriate estate in the land out of which to grant the easement. The grantor must also be legally competent.

Capable grantee: a fee simple owner or leasehold owner of the dominant tenement who is legally competent to receive grant.

Front 21

The right must be sufficiently definite.

Back 21

Loosely-defined rights, e.g. a ‘right to a good view’ – too broad,or a ‘right to light’, will fall foul of this requirement.

Courts are unlikely to recognise this as an easement.

Front 22

Hunter v Canary Wharf Ltd [1997]

Facts

Back 22

The claimants lived in London’s Docklands. When the defendants built Canary Wharf Tower, some 250 metres high and over 50 metres square:

it transpired that it interfered with the claimants’ television reception

Front 23

Hunter v Canary Wharf Ltd [1997]

Held

Back 23

The House of Lords held that there could be no such thing as an easement to receive a good television signal.

Front 24

Marketability

Back 24

The concern with how carefully delimited the right is ties in with the ‘marketability’ of the land; the above rights, for instance, are so broad that they could prevent all manner of construction on the servient tenement.

You don’t want too many people having broad rights over land such that it looses its value. E.g. limited on whether they could build on it.

Front 25

The right must be sufficiently definite -

In re Ellenborough Park

Back 25

In regards to this element, the trustee sargued that:

A grant of ‘full enjoyment of the pleasure ground set out and made’ is too broad/loosely-defined to amount to an easement. It did not set out any limits.

Front 26

‘ius spatiandi'

Back 26

The right therefore amounted to a ‘iusspatiandi’, that is, a right to wander over all the land and enjoy its amenities, including its produce, without limit.

Front 27

Evershed MR - Judgement on this argument:

Back 27

Evershed MR disagreed with the trustees’ argument, and said that it was perfectly clear what the limits of the right inquestion were:

They could walk around it where provision was made for them to do so, use whatever seats were provided, etc., but it was plain that they could not trample all over the park and pick flowers etc.

Full enjoyment was not loose –therefore was sufficiently definite.

Front 28

The right must be within the general nature of the rights traditionally recognized as easements -

Back 28

In re Ellenborough Park per Danckwerts J, quoting from Cheshire’s Modern Real Property at 140 said:

• In principle, it is always possible to find new easements.
  
• Must fulfil the 4 requirement test.
• The courts will, however, be veryreticent to recognize new negative easements (an easement preventing theservient owner from doing something on their land; in general, this must beachieved through a restrictive covenant).
  

Front 29

The right must not impose any positive burden on the servient owner.

Back 29

An easement cannot generally require the servientowner to do something,

e.g. to maintain apath over which the dominant owner has a right of way.

Although the dominantowner might themselves be entitled to maintain it.

Front 30

The right mustnot deprive the servient owner of all beneficial proprietorship.

Back 30

The easement must never exclude the grantor from use of his land.

Where use is in the nature of exclusive user, it can never exist as an easement.

Front 31

Copeland v Greenhalf 1952

Facts

Back 31

Mr Greenhalf wasa wheelwright, i.e. someone who repaired wheels on vehicles. He would often leave vehicles on Mrs Copeland’s driveway while they awaited repair.

She went to court, asking for an injunction to prevent him from continuing to do so. He responded by claiming he had acquired an easement by prescription.

Front 32

Copeland v Greenhalf 1952

Court Held-

Back 32

What Mr Greenhalf was claiming was, in effect, the right to use the land however he saw fit and to exclude MrsCopeland from using it.

This, he said, was too broad a claim for an easement: an easement cannot deprive the owner of the servient tenement of all beneficial proprietorship.

Front 33

The right must not deprive the servient owner of all beneficial proprietorship.

In re Ellenborough Park

Back 33

Evershed MR discussed this Greenhalf in In re Ellenborough Park -

dismissed it as an argument for the trustees.

It was quite apparent that the trustees weren’t being denied the use of the land by people occasionally come on to it in defined areas and using it in defined ways.

Front 34

Moncrieff v Jamieson [2007]

Back 34

Lord Scott

‘I would, for my part, reject the test that askswhether the servient owner is left with any reasonable use of his land, andsubstitute for it a test which asks whether the servient owner retainspossession and, subject to the reasonable exercise of the right in question,control of the servient land.’

Front 35

Meaning:

Back 35

The grantor must not be deprived of possession and control of his land. inevitably, however, there will be some limitation places on the grantor's use of his land.

It is a matter of striking a balance between this inevitable interference with enjoy meant and upholding grantees right.

Copeland - was holding possession.

Front 36

No purely recreational easements.

Back 36

There is aline of case law which indicates that easements cannot be purely for recreation.

Front 37

No purely recreational easements -In Re Ellenborough

Back 37

Evershed MR was concerned:

• that which wenton in gardens could in any event not be described as ‘mere’ recreation andpleasure.

• Taking children out, for instance, was not merely about recreationand amusement. Whether he meant by this that it is important for the health ofchildren that they be taken outdoors, and that this was therefore not simply acase of recreation, or whether he meant that taking children out is hard workfor adults, he did not make clear.
  

Front 38

How are Easements Created?

Back 38

Easements can be created by grant or by reservation.

They must be created

•expressly, or

•impliedly, or

•prescriptively.

Front 39

What is a Grant

Back 39

A grant is made when one landowners, A, creates an easement over his land in favour of his neighbour B.

Front 40

Reservation

Back 40

A reservation arises when a landowner transfers part of his land to another but he keeps or reserves himself a right to use part of the land he has sold.

Front 41

Express Creation

Back 41

By expresswords. Normally, this means that the grant of the easement will be expresslyset out in a deed of transfer of freehold ownership, or in a lease. This givesrise to registration requirements

Front 42

Express Words, Regi-stration(reg. land only),

Legaleasement

Back 42

If‘carved’ out of a registered estate, grant mustbe ‘completed’ by registration.

Front 43

Express Words, Regi-stration (reg. land only),

Equitable easement

Back 43

No registration of the benefit; the burdenis registered on the charges register of the servient tenement if that estateis registered.

Front 44

Implied Grant

Back 44

Easements maysometimes be implied into a deed of transfer. This may be on one of fourgrounds:

1. Neccessity
2. Common Intention
3. The rule in Wheeldon v Burrows (1879)
4. s62 of the Law of Property Act 1925

Front 45

Necessity

Back 45

An easement ofnecessity arises when it is impossible to make use of a tenement without aneasement.

The easement of necessity is strictly controlled. The dominant tenement must have no access at all.

Front 46

Commonintention

Back 46

It may be thata transferor and a transferee had a common intention in relation to thetransfer which requires an easement.

Front 47

Wong v Beaumont Property Trust

Facts

Back 47

Mr Wong held a lease on three cellarsin which he operated a Chinese restaurant.

In the lease (which predated theownership/tenancy of both parties) was a covenant to ‘control and eliminate allsmells and odours caused by the use of the demisedpremises as a restaurant to comply with the Health Regulations’.

Front 48

Wong v Beaumont Property Trust

Held

Back 48

Whatneither party knew was that the only way to fulfil this obligation was byinstalling a ventilation system which went through the upstairs premises.

When MrWong asked for permission to install this, it was denied.

The court found thatan easement of common intention arose, since this was the only way of givingeffect to the intention of the parties’ predecessors was by way of an easement.

Front 49

.The rule in Wheeldon v Burrows.

Back 49

Facts of Case

1. A owns a plot of land. In order toaccess the road, he walks from his house across the rest of his land. Thiscannot, of course, be an easement: you cannot have a right against yourself towalk over your own land.

2.A now builds another house on theland, closer to the road.

3.A divides the plot into two.

4.A sells the plot further away fromthe road to B. B now has a ‘quasi-easement’ across A’s land.

Front 50

B now has a ‘quasi-easement’ across A’s land.

Back 50

Therule in Wheeldon v Burrows converts this kind of‘quasi-easement’ into a full easement in B’s favour, being an easement to do what had previouslyproved significant for A’s enjoyment of his land.

Thepoint is that but for the unity ofpossession of the two plots:

• i.e. but for the fact that both plotswere owned by the same person – A’s use would have amounted to an easement, andthe law steps in to grant B that same right.
  

Front 51

S 62 Law ofProperty Act 1925.

Back 51

Section 62 contains general words which can imply rights into the conveyance where they have not been specifically mentioned.

This has a very dramatic effect on easements since rights which took effects as lesser rights, such as licences, could later become easements under this section

They would be implied into the conveyance transferring the estate in land and so the law implies that they are created by deed..

Front 52

International Tea Stores Co v Hobbs 1903

Back 52

1.A landlord owned the fee simple intwo plots of land.
2.One plot was then let to a tenant.

3.As a matter of grace and favour, the tenant was permitted accessacross the landlord’s land to his land. This was a bare licence (as the court agreed).

4.The landlord later sold thefreehold in the plot occupied by the tenant to the tenant.

5.Thecourt held that the tenant had acquired notjust the freehold, but also the right which previously had been by licenceonly, because s 62 LPA 1925 operated to turn that ‘precarious’ right into afull-blown easement.

Front 53

Easements canonly be acquired prescriptively where:

Back 53

1. The claim is made by one fee simple owner against another fee simple owner. A prescriptive claim against a tenant will fail.
2. A tenant cannot acquire a right prescriptively against their own landlord or against another tenant who holdsunder the same landlord.

Front 54

Easements can only be acquired prescriptively where:

Back 54

2.There is a continuous user. It is not clear how frequent the user must actually be.

3.The user has been as of right: nec vi, nec clam, nec precario.

Front 55

There are three grounds of prescriptive

acquisition:

Back 55

1. Common lawpresumption from long user.
2. Lost moderngrant
   
3. Prescription Act 1832.
   

Front 56

Common law presumption from long user.

Back 56

It waspresumed at common law that any user which began before time immemorial (whicheventually became the year 1189) must stem from a valid grant before that date.

The courts later presumed that any user for 20 years or more was indicated ofuser since 1189.

This could, of course, be defeated by showing that the userdid not take place in 1189.

Front 57

Lost modern grant.

Back 57

Assumed that you can show that you’ve been doing something for 20 years.

This will be treated as evidence that a grant must have taken place at some point prior to those 20 years

Since then document containing gthat grant has since been lost.

Front 58

Tehidy Minerals v Norman

Back 58

If you can show that you’ve been doing something for 20 years, then unless it was in fact impossible to granted you the right to do what ever you’ve been doing, The court will grant you a right even in the face of evidence that you have not been granted a right.

This is much more likely that your claim will succeed compared to presumption from long user.

Front 59

Prescription Act 1832

Back 59

'Worst Drafted Acts'

This is only available in relation to litigation whichhas already begun; until then, the right does not ‘fully’ exist. In such cases,the Act provides that evidence of user as of right and without interruption for20 years cannot be defeated by showing that it began after 1189 (see s 2). If the easement is enjoyedfor 40 years as of right and without interruption, then it will be deemed‘absolute and indefeasible’ (s 2) unless the right is enjoyed by writtenconsent/agreement or the servient owner’s capacity to grant an easement waslimited by statute.

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end

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