Land - Easements - Characteristics

Front 1

DEF 'easement'

Back 1

An incorporeal hereditament - comprises certain proprietary rights that so. may enjoy over a neighbour's land

Front 2

'Wall v Collins' per Hooper LJ

Back 2

Without Es it would be "very difficult if not impossible" to enjoy the benefits of land ownership

Front 3

Capable - created

Formalities

Back 3

Legal E: gen. a deed (+ poss. registration)

Equitable E: gen. an enforceable written instrument, or a PE claim

IF FAIL: no E; only a personal licence

Front 4

'Re Ellenborough Park' per Evershed MR

Back 4

Characteristics of an E:

1) D & S tenement
2) Separation
3) E accommodates (= benefits) the D tenement
4) The E is capable of forming the S-M of a grant

Front 5

1) D & S tenement

Back 5

• Unlike profits, Es cannot exist 'in gross'

• Both the D & S tenements must be identifiable at the time of creation of the E:
- 'London & Blenheim'
- 'Gillett v Holt'

Front 6

2) Separation of D & S tenement

Back 6

• Need separation ownership OR occupation - 'Roe v Siddons'

• If come into same O and O, the E is extinguished

• If come into same occupation but not ownership, the E is suspended for that period - 'Canham v Fisk'

Front 7

3) E accommodates the D tenement

Back 7

• Must confer a benefit on the LAND, not just on the owner

Guidelines
• Proximity: although don't need to be adjacent - 'Bailey v Stevens'
• Not purely personal: contrast
- 'Hill v Tupper': boater could run his business anywhere; benefit to him, not land
- 'Moody v Steggles': sign benefitted the trade of the (immobile) pub
- 'Banstead Golf Club': merely personal right didn't accommodate; no E
• Not recreational use: although poss. if certain/defined - 'Re Ell. Park': enhanced the properties

Front 8

4a) Capable of forming the S-M of a grant

Back 8

DEF: the E is capable of being expressly conveyed by deed

a) Capable grantor and grantee

b) Right is sufficiently certain
- 'Lawrence v Fen Tigers': right of speedway team to make noise was too uncertain
- 'Hunter v Canary Wharf': no right to a view

c) Within the gen. nature of rights recognised as Es
-- Allows judicial discretion/flexibility
-- Ensures incremental development
BUT: 'Dyce v Hay': L. Leonard: conceptions of Es "must alter and expand with the changes that take place in the circumstances of mankind"

EG: no financial expenditure
- HL Sct 'Moncrieff v Jamieson': L. Scott (obiter): no E to use swimming pool
EG: no new negative E's - 'Phipps v Pears' (weatherproofing); 'Hunter v CW'

EXCEPTION: 'Crow v Wood' (fencing)

Front 9

4b) Ouster principle

Back 9

OUSTER PRIN.: conflict:
- HL Sct 'Moncrieff v Jamieson': L. Scott (obiter): an E can substantially interfere w/the S tenement, so long as isn't exclusive possession
- CA 'Batchelor v Marlowe': no E which substantially interferes --> No E to park several cars; impact too great

Law Comm'n: unclear should employ a 'reasonable use' test

BUT: NB: 'Virdi v Chana': followed 'B v M', but found that E of parking was reas.

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Public policy

Back 10

Not openly discussed, but NB fund. prin. of land alienability

- 'Platts v Crouch': w/o E to moor boats, the land would have been commercially unviable

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Easements - example cases

Back 11

PARKING
- HL Sct 'Moncrieff v Jamieson'
- CA 'Batchelor v Marlowe'
- 'Wall v Collins'

STORAGE
- 'Wright v Macadam'
- 'Copeland v Greenhalf': too onerous

USE OF A GARDEN
- 'Re Ellenborough Park'
- 'Mulvaney v Jackson'
(Although a mere right to wander doesn't accommodate the land)