Easements

Easements

An easement is a proprietary interest in land which enables you to use somebody else's land for limited purpose
1. An easement can enable the use of the land in a particular manner (positive easement) or in a restrictive manner (negative easement)
  1. STATE WHAT THE PARTIES WANT TO DO: A wants to...
    1. 1. We must establish whether or not the rights of the parties are capable of being an easement
      1. The 4 requirements that must be satisfied are set out in Re Ellenborough Park by Lord Evershed
        a) Must be a DOMINANT & SERVIENT TENEMENT
        This means that there must be two parties of the land in concern. A separate dominant and servient tenement.
        Dominant: Has the benefit
        Servient: Bares the burden
        b) The easement must accommodate the DOMINANT TENEMENT
        Must confer a real and practical benefit for the reasonable enjoyment of the land. And benefit his enjoyment of the land rather than just the owner
        Huckvsale v Aegan Hotels
        judges had to question whether the easement was extinguished as it was no longer capable of accommodating the dominant tenement
        The exercising of the right cannot be purely connected with claimants business
        Hill v Tupper
        BUT
        A right that benefits a business can also benefit the land only if it is essentially linked to the land
        Moody v Steggles
        The sign was benefiting the land and the business and its sucessors
        The business was synonymous to the land
        Canal boats could be moved, the easements was not accommodating the land
        WHEN A BUSINESS IS CONCERNED
        Bailey v Stephens
        You cannot have a right of way in kent when you live in newcastle.
        c) The owners must be different person
        a person cannot have an easement over their own land.
        The same person can own the freehold of two tenentments but must not have the right to occupy both
        Roe v Siddons
        Where the tenantment came into possession with he same person the easement is extinguished
        Boram v Griffith
        A Landlord can have an easement over his tenant
        d) The right must be capable of being a grant
        This is because easements cannot be passed by possession as they do not physically exist. They must be passed by the transfer of property (GRANT)
        The right must be capable of forming the subject matter of a grant that is sufficiently certain.
        The right cannot grant exclusive possession
        Copeland v Greenhalf
        The use of a strip of land to repair vehicles was considered too imprecise.
        This is using the premisis to the exclusion of all others
        The right must be sufficiently certain and not too vague
        Aldreds Case
        For the question of prospect which is only for the enjoyment of a view and not that of necessity no action lies
        No right to an undefined flow of air
        Webb v Bird
        HOWEVER
        Wong v Beaumont
        You can claim for a right of light or air when it is coming through a defined opening
        The regulations under the health authorities were that the restaurant must be ventilated. The ventilation was necessary for that particular and definite purpose
        Was undefined = not certain
        The right must be judicially recognised
        Borman v Griffith
        a right of way was judicially recognised
        common sense, would not be easement if ridiculous
        Must not impose a positive burden on the servant tenement
        Regis Property Co v Redmen
        Hot water
        S62 LPA
        The conveyance of land will transfer any easements with the land
  2. An easement is an An incorporeal hereditament which means it is non physical but can be passed on by way of deed
2. The next step is to determine whether the easement has been created correctly
1. There are 6 modes of creating an easement
  1. Prescription
    1. To acquire an easement through prescription means that you have been enjoying the right as if it were an easement for a long period of time.
      1. Nature of use:
        1. The use has been "as of right", that is, without force, without secrecy and without permission
        Garden v Hodgson
        a right of way through a neighbours garden was used for 40 years but was given shillings in return. The court held that this defeated the element of as of right
        If the owner of the freehold estate tolerates the use and allows the use then there cannot be as of right
        Demolishing barries ext will result in a claim failed as this is contributing trespass and the use of force
        The use is as if you were legally entitled to do so
        2. The use must be continuous
        Rights of way need not be used night and day religiously however they need to be more than intermittent (OCCURING AT IRREGULAR TIMES)
        Dimet v NH Foot
        6-10 times per year for 35 years
        WAS SUFFICENT
        Hollins v Venny
        3 times per 12 years
        NOT SUFFICENT
        3. Only between freehold estates
      2. Period of time:
        Common Law
        If the right has been enjoyed sufficiently before the length of legal time (1189), however rebuttable presumption allowed if 20 years can be proved. Then the easement is valid
        Any evidence that the easement was enjoyed after the date of 1189 will rebut the 20 year rule and deny the easement valid
        USE COMMON SENSE FROM QUESTION
        Lost Modern Grant
        This concept is judicial fiction. There is a presumption if the right had been enjoyed for more than 20 years then the right had been granted but the paperwork has been lost through the years
        Bridle v Ruby
        Claimant believed that easement had been Expressly reserved but it had been deleted from conveyance
        does not need to be continuous
        Prescription Act 1832
        Known to be poorly drafted, the Prescription Act introduces new provisions for the use of 20 year and 40 year rights enjoyed continuously
        20 years
        When the right is enjoyed for a period of 20 years without interruption it cannot be defeated by proof that use began after 1189
        40 years
        When a right is proved to have been enjoyed for 40 years it is deemed absolute and indefeasible.
        UNLESS proof of the right was given by written consent or an agreement
        Interruptions
        Proof under 20 or 40 years of an interruption of continuous use for a period of 1 year will destroy a claim
        Tehidy Minerals v Norman
        Claimants owned farmland since 19th century to graze animals. Land was interrupted and took over by the army, when land was returned the farmers began to graze again.
        Fence was erected by claimants, when farmers broke it down the claimants sued for trespass
        The farmers were unable to claim an easement under the prescription act due to the interruption of next before action . however were able to succeed under loss of modern grant
        For both 20 and 40 years the right must be completed 'next before acton' which means no matter how long use as of right, no absolute right is acquired until established in action
2. Implied Grant
  1. S62 Law of Property Act 1925
    1. Best shown in: International Tea Stores v Hobbs
      1. 1. Right must be continuous and apparent
        2. Must exist at the time of grant
        3. Diversity of occupation prior to the conveyance
        4. Right must be capable of being an easement
        5. No contray intenntion.
        'We don't intend this as an easement'
      2. concerned a right of way. Transferred a license to an easement
    2. Applies to both registered an unregistered land and ONLY DEEDS OF TRANSFER OR LEGAL LEASES
    3. When land is conveyed, by virtue of this act it shall pass any pre existing right of enjoyment of the land which by legal conveyance be turned into an easement
  2. Wheeldon v Burrows
    1. 2 pieces of land were owned and occupied by one person. They were then sold off to the two parties, when one parties started building on the land, the other dismantled the progression claiming there was an easement breach.
      1. Held there was no no implied easement right.
        The general rule is that once land is divided and sold all rights over the land are expressly reserved
        No easement of light
        HOWEVER, easement will satisfy if:
        1. The Quasi Easement must be CONTINUOUS & APPARENT
        Where there is an obvious easement such a road way denoting a right of way
        3. Have been used, and is used at the time of the disposition, by the seller for the benefit of the dominant land
        2. And/or necessary for the reasonable enjoyment of the land
        Easements that pass through other land which are constant such as drainage
  3. Common Intention
    1. These are easements that are nessacary to give effect to the land in the way in which it was intended to be used in.
      1. Simular to Necessity, Common Intention may be applied wider in that the easement need not be nessacary for the use of the land, as long as the parties had common intention.
        Davies v Bramwell
        The crossing of a section of land which no right had been granted was held to be sufficient by the courts as for several years the parties had common intention regardless of it not being necessary to the land
        Stafford v Lee requirements for Common Intention
        Where a right of way was held to have been implied by common intention so that builders could transfer over the plot of the defendants land for the purpose of construction
        1. A common intention that the land is to be put to some definite and particular use
        2. That the easements claimed are necessary to give effect to that use
  4. Necessity
    1. This is a strict test where a person must prove there is no other legally enforceable means of access to the land sold or retained.
      1. If there is another way of access, albeit difficult, courts will usually say tough
        Mahjang v Drammeh
        The court held that the land could be accessed via boat and thus the easement was not considered one of nexessity
        Union Lighterage v Sterling
  5. Only talk about implied grant when there is mention of grant. You cannot imply easement if there already is one (express grant)

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