Easements

Third Party rights over another person's land which do not involve a claim to possession. Usually the right to do something This is a proprietary right (note: licences are personal). It will pass with changes to ownership.  Easements are private rights which require creation Substance of EasementsBrown v Robbins: the right to not interfere with the neighbour's land is a natural right as opposed to an easementProfits a prendre is the right to take something from the land as opposed to the right to do something, these can exist appurtenant (for the benefit of the neighbouring land) or in gross (for the benefit of individuals)Barley v Stevens: Profits a prendre appurtenant will pass automatically to the new land unlike other leases Re Ellenbourough Park: The land around the park was sold for building, each property owner was allowed access to the park upon paying money for its upkeep. The park was sold and new owners of the park wanted to further build. There must be a dominant and servient tenement Easement must accommodate the dominant tenement ie. rights are restricted to those which benefit the land/ positively effect the user of the land.  The dominant and servient tenant must be different people The right must be capable of being the subject matter of a grant.  Moody v Steggles: owner of dominant land had right to advertise it on servient land. This benefited the dominant tenement and so was an easement.Hill v Tupper: Basingstoke canal company leased bank's land to Hill for boat yard and canal use. Tupper then did so too. Held, Hill's right was not an easement as it was a personal advantage as opposed to a proprietary right. Platt v Crouch: right to moor boat on river bank was an easement as it benefited the riverside hotel business. An easement can be a commercial right if the dominant land is benefiting and not just the owner. Copeland v Greenland: Using claimant's land to store vehicles was considered excessive, the defendant was essentially claiming ownership of the land.Moncrieff v Jamieson: The right to park is an easement if the use of the land left the servient tenement in use and in control of the land. Merely recreational uses of the land are not capable of being an easement. Huckvale: If an easement ceases to benefit the dominant tenement, it terminates.Express Creation:1. Express Reservation, s65 LPA- The owner reserves a certain right over the land. These reservations must be strictly defined. They are often contained in the transfer of land to a new owner. If they are reserved the parties do not need to execute an express grant by deed. 2. Express Grant - owner of servient land grants an easement to dominant land, either under separate ownership or a single divided ownership.LPA s1 easement = a legal interest in land. THIS REQUIRES DEED AND REGISTRATION and so must comply with formalities under s52 LPA. In the absence of this there is merely a Licence. LRA 2002 s27 requires registration as a registrable disposition. Arya: Dominant tenement is under no obligation to sign a deed of further easements. A grant of easement does not carry the obligation to grant additional or confirmatory deeds. Although the Dominant tenement cannot interfere with the easement they are not obliged to help either. 3. Equitable Easements- If there is lack of formalities or lack of deed in an express grant, an equitable easement is formed.  A verbal agreement is not sufficient to form a proprietary right, it must be written, signed and noted under the CHARGES REGISTER in order for it to maintain priority. Implied CreationImplied easements take effect at Law as opposed to through equity. They are immune from the need of registration i.e. THEY ARE OVERRIDING INTERESTS1. Implied Reservation- NecessityWheeldon v Burrows: Implied reservation is only accepted in exceptional cases (most implied easements are actually grants). The rule states that a quasi easement exists where the landowner sells one part of his land and an easement subsequently arises from a land which used to be under the one ownership but was later conveyed. Swansborough v Coventry: implied easements are often only grants. If 2 plots of land are sold simultaneously, the easements are considered to be grants. but-for it's existence, the dominant tenement cannot be usedImplied Reservation must be necessary to enjoy the land. Union Lighterage: Needing to cross the servient land to use the dominant land is an implied easement out of necessity (note: if there are alternative means this right of way is destroyed)Barry v Hasseldine: If there is an alternative access which is revocable, the easement may still be applied.May arise through common intention. Sommer v Sweet: Alternative access was barred but both servient and dominant owners wanted to keep the barrier, the easement was allowed. Pwllbach v Woodman: The law will readily imply a grant or easement necessary to give effect to the common intention of parties.Wong: cellars were leased to a restaurant, this required a ventilation system. The court found an easement of ventilation to be put onto the servient tenement's land. Re Webb's lease: Land lord posted advertisement outside leased property. Held, these was no implied reservation as there was no common intention. It was not a necessary factor. Stafford v Lee: Purchaser wanted to erect house but needed access to the vendor's remainder with the sale of the remainder in mind. This was sufficient enough to give way to implied common intention. 2. Implied Grant:LPA s62: easements are often implied where there is a transfer of land with certain rights which can amount to easements. International Tea Stores v Hobbs: Hobbs leased out holding to ITS. He allowed them to cross yard to access to back door. ITS bought freehold and continued to use the yard. Held, the original permission had elevated to an easement. This elevates the rule in Wheeldon v Burrows. Wright v Macadam: Any subsequent rights from a lease can transfer a licence to an easement. The right to use a coal shed became an easement as the owner had been under a lease for 3 years which had granted him the use of the top flat. Long v Gowlett: grantor was in previous occupation of both the servient and dominant land. Implied grants could not be found. Sovmots Investments: Where rights are exercised continuously and openly, prior diversity will not take effect. Platt v Crouch: Claimant's bought hot which was previously part of land including some river moorings. The defendant had rights over the moorings and so bought an action preventing the hotel benefiting from them. The right must be sufficiently capable of becoming an easement. Where permission is required each time, this is not an easement.Green v Ash: had to ask for passage through doors each time, this was not a easement as the servient owner retained continuous control. Birmingham Dudley: If the permission itself is temporary or limited, the easement may be defeated. 3. Prescription:A. Prescription Act s2, s3, s4:s2 +s4: Easements can be acquired through long user for 20 years or 40 years, this must be THE MOST RECENT 20 years.Qualifying factors: must be without force, stealth and permission. Hollins v Verney: the usage must alert the servient owners that a continuous right is being exercised. Cutting trees every few years is too discontinuous to be considered as alerting the servient owner.  Odey v Barber: defendant used claimant's track for livestock. The previous servient owner had accquiested to this use. An easement was therefore established by Prescription. Note: a grant of permission "kills" a prescriptive claim. Gaps more than 12 years may not be fatal depending upon the case. Dalton v Angus: Servient owner had build fence to prevent claimant from using area for livestock. A gap under a year was held not to be fatal to a prescription claim. Easements of light, s3: The window has enjoyed access to and use of the light for any 20 years.  B. Common LawThe use of the right in question must be used for at least 20 years for a presumption at law of an easement to arise.This can be rebutted by showing that the right could not have physically have existed due to the land being different/not there. THIS IS NEVER USED IN COURTC. Lost modern GrantFills in the gaps of Common Law easements. If there is at least 20 years of enjoyment of a right, there is presumption that a grant must have been made at some point which was consequently lost. Tehidy Minerals: This can be any block of 20 years (does not have to be the last/most recent 20 years).Termination and Extinction: Deed- parties agree in deed to terminate the easement Common Ownership- if the same person comes into ownership of both the servient and dominant tenement, the easement is extinguished Abandonment- The dominant owner must have abandoned the easement through non-use or if the land itself changes. This is essentially negative Prescription.  Jones v Cleanthi: notice required firewall to be built which would block right of way. The right of way had not been extinguished as taking one's property right away without compensation does not validity the notice. The Law Commission has suggested abandoning these three ways and creating one rebuttable presumption of termination after 20 years of non-use. 

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