ease
- Created by: Rachel
- Created on: 11-04-14 12:06
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- Easements
- Although land may be owned by one person, sometimes others will enjoy rights that they are entitled to exercise over that land
- They consist of a right to use/restrict use of the land of another person in some way
- right of way
- right to light
- right to water flowing through neighbours land
- There are FOUR essential characteristics of easements
- if any are missing - right claimed WONT be an easement
- Re Ellenborough Park 1956
- estb. 4 characteristics
- Owners of EP and surrounding land, sold some of the land to property developers
- developers built o land and sold plots which included rights
- eg: right to enjoy the land BUT subject to payment of a fair and just proportion of the costs to keep land in good order
- Claimant bought land - wanted to prevent the purchasers of plots from enjoying use of park
- eg: right to enjoy the land BUT subject to payment of a fair and just proportion of the costs to keep land in good order
- developers built o land and sold plots which included rights
- 1. There must be a dominant and servient tenement
- Right must relate to 2 separate plots of land
- Dominant tenement - owner enjoys easement
- Servient tenement - owners land bears the burden of the easement
- Right attaches to the land and not to a person.
- In order to have an easement, the owner must have an estate in land - an easement can't exist independently of the land
- A licensee can't have an easement but a tenant under a lease can
- Right must relate to 2 separate plots of land
- 2. Easement must accommodate the dominant tenement
- Right must be for the benefit of the land and not for the benefit of a person in their own personal space
- D & S land don't have to adjoin each other but should be close enough to estb. a connection between the 2
- 3 issues
- 1. can an easement for business use accommodate a dominant tenement?
- As a business is run by an individual its difficult to argue the right benefits the LAND rather than the owner.
- it MUST benefit the LAND and not the OWNER personally
- Hill v Tupper
- Purely personal or commercial advantage won't suffice
- tenant of land on a canal bank had been given the exclusive right to put boats on canal
- T put rival boats on canal so H sued
- Claim - failed as it was held that this right didn't amount to an easement b/c it didn't accommodate the dominant tenement
- A licence not an easement existed
- Claim - failed as it was held that this right didn't amount to an easement b/c it didn't accommodate the dominant tenement
- Moody v Steggles
- commercial benefit doesn't exclude it immediately but it must be necessary for proper use of land, not just for business
- D owner had right to advertise his pub/inn - accommodated dominant tenet b/c serviant land situated in front of pub
- As a business is run by an individual its difficult to argue the right benefits the LAND rather than the owner.
- 2. can a purely recreational right exist as an easement?
- Historically if right was purely recreation - couldn't accommodate the land
- Re-Ellenborough Park allows possibility of easement where its purely recreational
- has to be connected w/ dominant land
- can't create easement for visiting gardens free of charge
- has to be connected w/ dominant land
- Re-Ellenborough Park allows possibility of easement where its purely recreational
- Historically if right was purely recreation - couldn't accommodate the land
- 3. can an easement with significantly increased use from that originally granted still exist as an easement?
- once an easement accommodates the land, an increase use of land won't extinguish easement
- if the use is excessive - right can be challenge - Jelbert v Davis
- 1. can an easement for business use accommodate a dominant tenement?
- 3. Dominant and serviant tenements must be owner/occupied by different people
- can't have an easement over your own land - you may have a quasi easement
- a tenant can have an easement over their landlords land as although the D & S lands are owner by same person - occupied by different people
- 4. Easement must be capable of forming the subject matter of a grant
- only a person w/ proprietary interest can grant an easement
- Grantor must be legally capable
- if grantor doesn't have legal estate in land - can't grant legal easement
- Grantee must also be legally capable of acquiring easement
- must be a definite person or body of persons
- not effective to grant to fluctuating grow pf people e.g.: people living in village
- must be a definite person or body of persons
- Right itself must be sufficiently definite
- easement can't be too vague/uncertain- must be clear to grantee & grantor the exact nature of rights
- Right must be in the nature of an easement
- right must be within categories of rights recognised as easements or very similar to these
- Must not impose +ve burden on servient owner
- Easement shouldn't involve the expenditure of $$$ by servient owner
- Easement should be permissive rather than imposing a burden to act
- right must be within categories of rights recognised as easements or very similar to these
- They consist of a right to use/restrict use of the land of another person in some way
- General principles of easements
- Must not impose a +ve burden on servient owner
- can't impose any expenditure of $$ or any +ve action on servient owner UNLESS its been agreed between the parties or consists of one of the few exceptions
- eg: fencing
- can't impose any expenditure of $$ or any +ve action on servient owner UNLESS its been agreed between the parties or consists of one of the few exceptions
- Must not exclude reasonable alternative user of servient tenement
- GR: easement can't exclude grantor from use of his land
- Conflicts arise over storage and land
- Storage
- Wright v Macadam
- Concerned the right to store coal in a shed. Right was an easement even tho landlord couldn't access shed
- Copeland v Greenahalf
- D claimed that he had acquired an easement to store vehicles on C's land
- Had repaired cars on C's land and claimed he had an easement to do so
- however, this claim amount to the right to use land as his own
- Claim was too extensive to be an easement and amounted to possession
- however, this claim amount to the right to use land as his own
- Had repaired cars on C's land and claimed he had an easement to do so
- D claimed that he had acquired an easement to store vehicles on C's land
- Wright v Macadam
- Parking
- can seem like exclusive use of land
- depends on its extent of use (limited to certain times of day) - easement won't be upheld if it deprives landowner from using his land
- Hair v Gillman
- the right to park a car can be an easement
- Storage
- Conflicts arise over storage and land
- GR: easement can't exclude grantor from use of his land
- Must not impose a +ve burden on servient owner
- Grant of Easemnts
- can be granted by
- 1. Express grant/reservation
- neighbouring landowners can expressly agree about rights exercised over the other land
- incorporated into formal documentation when land is transferred as freehold or granted as leasehold
- Can arise independently of the conveyance of property
- Can be granted under statute
- made in favour of privatised utitlies that supply essential supplies e.g.: gas/elec
- neighbouring landowners can expressly agree about rights exercised over the other land
- 2. Implied grant/reservation
- Easements can be created by either a grant or reservation
- 1. Express grant/reservation
- neighbouring landowners can expressly agree about rights exercised over the other land
- incorporated into formal documentation when land is transferred as freehold or granted as leasehold
- Can arise independently of the conveyance of property
- Can be granted under statute
- made in favour of privatised utitlies that supply essential supplies e.g.: gas/elec
- neighbouring landowners can expressly agree about rights exercised over the other land
- Grant - made when one landowner creates an easement over his land in favour of his neighbour
- Must be made in deed - if not - only an equitable easement
- Reservation - where a landowner transfers part of his land to another but keep/reserves himself a right to use part of the land he has sold
- Viewed w/ suspicion by courts - seller trying to reserve rights over land he is selling
- only circumstance where reservation is allowed is in
- necessity
- intended easement
- only circumstance where reservation is allowed is in
- Viewed w/ suspicion by courts - seller trying to reserve rights over land he is selling
- 1. Express grant/reservation
- Sometimes grant will be implied in favour of a purchaser of land. Arises when...
- NECESSITY
- arises when land would be genuinely landlocked (D tenement can't have any access at ALL - can't show that there is a route but its inconvenient/long way round)
- Access to Neighbouring Land Act 1992
- An application may be made where someone needs to go on the land of a neighbour but he won't give them consent to do so
- Court will only make order if maintenance works MUST be carried out and theres no other way of accessing land to do the work
- cover repair of building, clearing drains & sewers, cutting back trees/hedges
- may include conditions e.g.: time and who is responsible for work
- An access order isn't an easement but only the right to go on land
- Order will be refused where courts think it will be unreasonable as the order will interfere w/ landowners enjoyment of land
- Intended Easements
- may be implied in favour of a transferee to give effect to a common intention
- Wong v Beaumont Property Trust
- concerned the lease of a basement which the tenant wanted to use as a restaurant
- couldn't be used w/o ventilation duct
- grant of easement was implied into the lease based on intention to open a restaurant
- Rule in Wheeldon v Burrows 1879
- only applies to grants of easements not reservations
- Wong v Beaumont Property Trust
- s. 62 LPA 1925
- can imply rights into conveyance where they haven't been specifically mentioned
- may be implied in favour of a transferee to give effect to a common intention
- NECESSITY
- Easements can be created by either a grant or reservation
- 3. Prescription
- if a right is exercised over long continuous period of time its possible to claim that the use is a legal easement
- can succeed if its lawful under another rule e.g.: public right od way
- an illegal right can't be an easement
- claim can't arise from physical force
- must be openly exercised and must be based on permission given by owner
- must satisfy Re Ellenborgh Park characteristics
- 1. Express grant/reservation
- can be granted by
- Extinguishment of Easements
- Unity of ownership
- if fee simple of dominant & servient land is owned by one person any easement over the servant land will cease
- if the fee simple of one peice of land is owned by one person who also owns a lease in the other plot of land - any easement will be suspended
- if land is later owned by 2 different people the easement will revive
- Release
- owner of dominant tenement can release his rights over the servient tenement - must be carried out by deed
- if release is oral then equity may give this effect if theres evidence in support of the release
- Abandonment
- failure to make use of the right won't cause the dominant land to lose the right
- however where theses been no use of the 20 years then abandonment can be presumed
- Unity of ownership
- Although land may be owned by one person, sometimes others will enjoy rights that they are entitled to exercise over that land
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