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  • 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
        • 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
        • 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
              • 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
            • 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
            • 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
        • 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
          • 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 $$$ by servient owner
              • Easement should be permissive rather than imposing a burden to act
    • General principles of easements
      • Must not impose a +ve burden on servient owner
        • can't impose any expenditure of $$ or any +ve action on servient owner UNLESS its been agreed between the parties or consists of one of the few exceptions
          • eg: fencing
      • 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
            • 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
    • 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
        • 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
            • 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
          • 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
              • s. 62 LPA 1925
                • can imply rights into conveyance where they haven't been specifically mentioned
        • 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
    • 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

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