Easements

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  • Created on: 15-05-17 14:22
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  • EASEMENTS
    • Characteristic
      • Re Ellenborough Park [1956] CH 131
        • must be dominant & servient tenement: one parcel of land which is benefitted & other which is burdened
          • Dominant Tenement
            • land benefiting fromeasement
          • Servient Tenement
            • land subject to easement
        • easement must accommodate the dominant land
          • right enjoyed by dominant tenement must be fufficiently connected with that land
            • Re Ellenborough Park 1956
              • benefit: insufficient to show that right enhanced the value of dominant tenement
              • benefit: person claiming right has to show it connected with normal enjoyment of the property (whether there is connection is question of fact)
            • Bailey v Stephens 1862
              • Byles J: A right of way over land in Northumberland cannot accommodate land in Kent...
        • dominant & servient owners must be different
          • dominant & servient tenements must not be owned and occupied by the same person
          • possible for one person to own estate in both dominant & servient tenement:
            • landlord grants lease of part of property tenant, landlord owns freehold reversion so each concurrently holds an estate in the land comprised in the lease
              • E.g. landlord owns block of flats & leases top floor flat to tenant, landlord grants easement to tenant to use stairs to reach flat for term not exceeding lease
        • right over land cannot amount to an easement, unless capable of forming subject matter of a grant
          • Right must be capable of being granted by deed, so requires capable grantor and capable grantee
            • Re Ellengorough Park
              • right must not be too vague or wide to be classed as easement
          • Courts restrict number of rights which can exist as easements
            • Hunter v Canary Wharf Limited 1997
              • Facts
                • Cs claimed D's construction interfered with their right to television reception
                • Ds argued at common law, can build whatever you want on own land, unfortunate if interferes with neighbour's air light or view
              • Held
                • no easement for television as imposes too high burden on builder:
                  • no way of knowing precise effect on television reception
                  • not limited to possible interference in immediate neighbourhood: an indeterminate number of [claimants], each claiming compensation in a relatively modest amount...
                • usually can rely on planning permission procedure to raise objections
                • also in instant case issue was temporary due to reconfiguration to new transmitters
                • considering distinction in Dalton v Angus (1881) easement of light, air or support different as can be more precisely defined & right may be acquired if enjoyed for a long period (by prescription)
          • Right to a view cannot be protected by an easement
            • Dalton v Angus 1881
              • distinction between right to a view & rights to light, air & support
              • right to a view imposed a burden on a very large and indefinite area
          • Limitations apply to extent owner of servient land is excluded from using the land himself
            • Copeland v Greenhalf 1952
              • Facts
                • D use part of C's land to store vehicles
              • Held
                • no valid easement: there was no limit to number of vehicles or period of time each could be stored with effect of excluding C (servient owner)
          • Issues arise when use of land seems to exclude owner of land
            • London & Bleheim Estates v Ladbroke Retail Parks 1992
              • question of degree: right not easements if effect is to leave servient owner without any reasonable use of his land
            • Miller v Emcer Products ltd 1956
              • exclusion of servient owner is to a greater or lesser degree common feature of many easements
              • claim to an easement only rejected if extent of ouster so great as to be incompatible with an easement
          • Distinction can be drawn between positive & negative easements
            • Phipps v Pears 1965
              • positive easement: gives owner of dominant land right to do something on servient land (such as right of way)
              • negative easement: gives owner of dominant land right to prevent owner of servient tenement doing something on servient land (such as right to light)
              • in instant case, easement for protection from the weather rejected as would impose unreasonable restriction on the ability to redevelop property
    • Key concepts
      • easement is an incorporeal hereditament which falls within the definition of land under s.205(1)(ix) Law of Property Act 1925
      • easement is a right which makes use of a person's land more convenient or accommodating or beneficial & as a right enjoyed over someone else's land it also imposes a burden
      • easements are proprietary rights which may pass with ownership of land
      • neighbours may grant licence permitting temporary access to their land but may be revoked & does not pass with ownership
    • Rights over land which are neither licenses or easements
      • Statutory rights
        • utility companies' rights are not acquired in same way as easements but granted by Acts of Parliament
      • Public rights
        • public enjoy regardless of whether they own any land
      • Profit a prendre
        • right to take something capable of being owned from someone else's land without having to own the land that benefits from the right,
        • known as right in gross
          • easement: cannot exist in gross as there must be land capable of deriving benefit from it & only confers mere privilege no profit
        • easement: cannot exist in gross as there must be land capable of deriving benefit from it & only confers mere privilege no profit
      • Natural right
        • to have your land supported by that of your neighbour
        • easement: granted by another not natural right
      • Restrictive covenant
        • agreement between landowners of neighbouring land , where one agrees to restrict his use of the land as an equitable interest
        • easement: capable of being legal or equitable
    • Acquisition
      • By express grant or reservation
        • easements may be legal interest
          • Law of Property Act 1925
            • s.1(2)(a): easement is capable of being a legal interest & can be legal only if its duration is equivalent to an estate in fee simple absolute (without a time limit) in possession or a term of years absolute (for limited period)
        • to create legal easement owner must: grant a permanent right (equivalent to estate in fee simple absolute) or grant a right for a fixed period (equivalent of term of years absolute)
        • easements may be equitable interest: if for uncertain duration or was created by correct formalities (defect of form)
        • deed is required to create a legal easement
          • Law of Property Act 1925
            • s.52(1): interest in land is void for the purpose of conveying or creating a legal estate unless it is made by deed
        • if a person is selling part of their land they may wish to reserve certain rights in their favour (reserving an easement)
        • to create legal easement over registered land: must comply with registered conveyancing rules
          • Land Registration Act 2002
            • s.27(1): disposition of a registered estate which is required to be completed by registration does not operate at law until registration
            • s.27(2)(d): registration required: express grant or reservation of interest that falls within s.1(2)(a) LPA 1925
        • express grant of legal easement requires registration on Property Register & will bind successive owners of servient land
        • if legal easement not registered: failure to comply with required formality means pending registration, easement is equitable & will not bind buyer of servient land
        • therefore legal easement over registered land right must be:for an estate equivalent to a fee simple absolute in possession or a term of years absolute granted by deed completed by registration
      • By implied grant or reservation on sale of part
        • after sale of part of his land seller will have right to exercise over land sold to buyer:
          • Easement of necessity
          • easements implied due to common intention of buyer & seller at time of sale
        • after purchase of part of land, buyer will have right to exercise, over land retained by seller
          • easements of necessity
          • easements implied due to common intention of buyer & seller at time of sale
          • easements created under rule in Wheeldon v Burrows (1879)
          • created under s.62 LPA 1925
        • implied easement of necessity may be found in relation to business use of premises
          • Wong v Beaumont Property Trust 1965
            • Facts
              • C ran restaurant from basement of building leased from D
              • C needs to place a ventilation duct on rear of building at request of local hygiene inspector
              • C's lease contains covenants not to cause nuisance, to control & eliminate all food smells & comply relevant food hygiene regulations
              • D refuses permission to erect ventilation duct on building
            • Held
              • lease is for part of building so qualifies as sale of part of land & implied easement capable of applying
              • implied easement of necessity: C cannot continue business without easement permitting ventilation duct
        • rule providing for implied easement
          • if no express provision allows buyer on sale of part to acquire implied easement over retained land of a seller
            • Wheeldon v Burrows 1879
              • Facts
                • T owned 2 pieces of adjacent land: the plot & the workshop.
                  • workshop windows overlooked the plot & received light over it
                  • plot was sold to W & T did not expressly reserve right of light for benefit of workshop
                  • W died & ownership passed to X. T sold workshop to B
                  • X erected hoarding, blocking light to workshop. B removed the hoarding & X sued for trespass
              • Held
                • T had not reserved right of access of light, no such right passed to B & X could obstruct light
                • rule allowing buyer implied easement of retained land of seller, arises if right was:
                  • continuous
                  • apparent
                  • necessary for reasonable enjoyment of the land
                  • being used as quasi easement by seller for benefit of part of land being sold, at time of sale
                • based on maxim: grantor shall not derogate from his grant
        • A owns house & adjoining field, track runs from house across field to lane
          • A uses track as shortcut to lane
          • A owns & occupies both pieces of land so no easement (right to use track would be capable of being easement if different owner: so is quasi-easement)
        • A sells B house but retains field & no express easement granted (for B to have right to use track)
          • issue: can B acquire implied easement under rule in Wheeldon v Burrows?
            • yes if: previously A used track as quasi-easement & A's use was continuous, apparent & necessary to reasonable enjoyment of house
        • A sells B field but retains house
          • A should have expressly reserved right of way over track
            • if claim of easement of necessity fails, rule under Wheeldon v Burrows will not assist A
        • meaning of continuous & apparent important in establishing whether implied easement exist under rule in Wheeldon v Burrows
          • Ward v Kirkland 1967
            • continuous & apparent: requires feature on servient land which on is apparent on inspection
            • feature must have degree of permanence (eg. drains or path)
      • Under s.62 LPA 1925
        • easement may be implied under s.62 LPA 1925
          • s.62: implies general list of words into conveyance of land (including buildings, fences, hedges)
        • s.62 LPA 1925 minimises length of conveyance document as many features are implied
        • s.62 LPA 1925 provides for automatic passing of rights of a permanent nature (such as easements) in transfer of land, but has been interpreted to have wider meaning
          • Wright v Macadam 1949
            • Facts
              • T (tenant of part of property) had mere licence to use coal shed; grant of new tenancy to T amounted to transfer of land; therefore s.62 LPA 1925 words were implied
            • Held
              • right to use coal shed was capable of being an easement & implied inclusion in deed transformed licence into legal easement
        • new easement may be created under s.62 LPA 1925:
          • on sale of part of freehold or legal lease of part
          • if prior to sale of part: dominant land enjoyed benefit of a licence or permission capable of being easement
          • generally diversity of occupation at time of sale
        • s.62 LPA 1925 capable of converting privileges allowed under initial part sale of land into easements (with no requirement for right to be continuous & apparent or necessary for reasonable enjoyment of the part)
          • Goldberg v Edwards 1950
            • a privilege which was not necessary to reasonable enjoyment of the land converted to implied easement under s.62 LPA 1925 on second lease
      • By prescription
        • easement may be acquired by prescription: without express or implied grant & no need for sale of part
        • A owns land with house on it, adjoining B's field
          • A uses track cutting across B's field to access house (as shortcut)
          • A has used track for many years, B has not given permission but has not prevented use
          • prescription may allow A to claim an easement
        • easement by prescription requires satisfaction of common law conditions
          • Mills v Silver 1991
            • Facts
              • only vehicle access to Ds hill farm was by track across C's adjoining farm
                • 1922 - 1981 occupier of hill farm used track openly (on occasions when dry enough to be passable); Cs predecessors knew of track use but gave no express permission
                • 1981 - 1985 very little use was made of track
                • 1987 Ds engaged B to lay stone road along track to make it usable in all weather conditions
                • C sought injunction to prevent Ds using track & damages for trespass against Ds & B
            • Held
              • first instance judge: found in favour of C, no easement acquiredCourt of Appeal: Ds had vehicular right of way by lost modern grant, but only entitled to repair track not improve
              • to acquire easement by prescription, person claiming right must show acts or use on which reliance is placed satisfy three requirements; if three requirements exist user is as of right
                • without force (nec vi): no objection raised by servient owner
                • without secrecy (nec clam): possible for servient owner to discover & user must be exercised openly
                • without permission (nec precario)
              • Parker LJ: use must be  such as to bring home to the mind of a reasonable person that a continuous right of enjoyment is being asserted
              • servient owner must take action to prevent use becoming easement acquired by prescription
        • user as of right must also satisfy two more common law conditions:
          • must be fee simple owner against a fee simple owner
          • use must be continuous for requisite period of time
        • to claim right by prescription at common law: must show right enjoyed for time immemorial (since 1189)
        • to overcome issues proving requisite period: presumption introduced doctrine of lost modern grant (if exercised for more than 20 years right must have originated by grant & deed containing grant lost)
        • there is also statutory provision for acquiring easement by prescription
          • Prescription Act 1832
            • s.2: common law claim to easement by prescription prevented from being defeated if easement has been enjoyed without interruption for 20 yrs
              • but not prevent easement being prevented in another way
              • right enjoyed for 40yrs: absolute & indefeasible unless shown enjoyment depends on express written consent
            • s.4: requires 20 or 40 yr periods to be next before some suit or action
              • any interruption to right is ignored unless person claiming right allows it continue once aware of interruption & person responsible for it
        • three methods of easement by prescription:
          • common law: user from time immemorial (difficulty in showing use since 1189)
          • doctrine of lost modern grants: enjoyed right for more than 20 yrs
          • PA 1832: use for at least 20 yrs immediately prior to court action
        • separate statutory provision for acquiring easement of right to light
          • Prescription act 1832
            • s.3: right to light enjoyed without interruption for 20 yrs & without written consent becomes absolute & indefeasible
            • under s.3 PA 1832 user does not have to be as of right (without force, secrecy & permission)
        • there is no statutory guidance as to amount of light dominant land entitled to
          • City of London Breweryv Tennant 1873
            • entitlement to: sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment... or for the beneficial use and occupation of [the building]
        • amount of light required determined on facts, taking account of extent of burden on servient land
        • easements acquired by prescription: are implied into as deed & legal easements
    • Protection of easements
      • expressly created legal easement: must be completed by registration (s.27(2)(d) LRA 2002) to become legal easement
      • if not legal easement buyer will take free from it (s.29 LRA 2002)
      • Sch.3 para.3 LRA 2002 does not protect expressly created legal easement which has not been registered
      • implied easement of necessity arising on sale part: not legal easement & not express grant so no need to register & will be overriding interest under Sch.3 para.3 LRA 2002 if:
        • obvious to buyer on reasonably careful inspection of land
        • buyer knew of it
        • user can prove exercised right in yr prior to sale
      • easement by prescription also overriding interest under Sch.3 para.3 LRA 2002
    • Extinguishing easements
      • easement may be expressly released by deed
      • if dominant land owner purchases servient land, easements will cease
      • easements may also be abandoned
        • Moore v Rawson 1824
          • Facts
            • house on C's land benefitted from a right of light (from D's land) to certain windows on one wall of house; C's predecessor took down wall & replaced without windows
            • 14 yrs later D built wall facing C's then windowless wall
            • 3 yrs later again C put windows in wall of house (as originally there) & claimed D's wall interfered with light
          • Held
            • C's predecessor, by erecting windowless wall, had extinguished right to light; if there had been indication of intent to put in windows within reasonable time, may been sufficient to preserve right
            • in instant case, strong indication (17 yrs passing) that right was abandoned

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