Easements notes/articles

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Dixon 'The sound of silence'

  • an easement or other right to make noise- Neuberger notes that 'there is no doubt that a defendant can have a right to carry on an activity which would otherwise be a nuisance.' This doesnt necessarily have to be an easement. The right to use anothers land may be the subject of a grant even if it is too indeterminate to be an easement. Might be acquired by prescription. Such a right is unlikely to be proprietary if its not an easement, and will only be endured while the grantor is in possession of the burdened land. May be a licence. An alleged easement of noise is awkward. Can be heard by many properties and is the easement defined by volume or time? Main reason seems to be that 'both principle and policy' require this because it should be possible for both the burden and benefit of a right of noise to run with the land. There is some support for an easement to make noise in Lyttleton Times v Warners. Common law recognises an easement to make noise, rationalised as the passing of sound waves over the servient land. 
  • Prescriptive easement to make noise- Neuberger makes clear that prescription is a largely unsatisfactory area of the law comprising 'a large number of judicial decisions, many of which are hard to understand and reconcile.' Real difficulties establishing a prescriptive right to make noise. Each case would be highly fact sensitive. More difficulty is need to establish user 'as of right'. In Neubergers view in order to be of right, the noise must have constituted a nuisance, for then it could have been stopped by the affected owner. 
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Dixon 'The sound of silence'

  • not being stopped it could have said to be as of right and form the basis of a prescriptive claim. On the facts of the case there was insufficient evidence of prescription for 20 years. 
  • Impact of planning permission- with no easement was the noise a nuisance? Neuberger said that rarely would the grant of planning permission absolve a defendant from a nuisance claim. Grant of permission doesnt make it objectively lawful. Relevant background, terms such a decibles, times of operation, and place might provide a reference point for consideration of if there was a nuisance.
  • Damages or injunction? there was a nuisance and needed a remedy. Most claimants want an injunction. D's would rather buy off the nuisance and carry on the activity. Shelfer said damages should be rare and injury was small and could be estimated and compensated in money. When oppressive to the D to award an injunction. SC decided damages should be awarded more frequently than currently. Neuberger said that awarding damaages 'was a classic exercise of discretion, which should not, as a matter of principle, be fettered.' Depends on facts and public interest, and planning permission could be a factor. Shelfer was too strict. This may be hard to swallow for property lawyers, as the whole point of proprietary rights is that they are about land use, not land value.
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Smith 'Property Law'

  • incorporeal hereditaments. Greater stress on the right than upon the underlying property. Blackstone 'their existence is merely in idea and abstracted contemplation, throughout their effects and profits may be frequently objects of our bodily senses.' Extremely common. Property right as they may bind purchasers of the land adversely affected. Best known easement is right of way over anothers land. Right must benefits claimants adjoining land. Economic efficiency demands that easements be recognised as proprietary interests. Hadnt been properly reviewed until 2011 by the Law Commission. Reform of many issues is recommended.
  • The courts are reluctant to recognise new restrictive easements, saying they are better recognised as restrictive covenants. Easements need creation. Public rights of way often over common land and 'open country'. A fluctuating body cannot enjoy rights, whether of public or proprietary nature. 
  • There is no finite list of easements, things such as putting up clothes lines has been accepted. The characteristics come from Re Ellenborough Park. The test doesnt really answer whether a particular right will be accepted. Obligations of a positive nature cannot normally be imposed. There cannot be a right to exclusive use of the servient land. 
  • Dominant and servient tenements- there is no requirement that the dominant tenement is identified in the documents creating the easement. 
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Smith 'Property Law'

  • Courts prepared to look at the circumstances to find it. It remains good practise to identify the benefited land so as to avoid uncertainty. The dominant tenement must be benefitted, not the individual owner of the land. Question of fact. There is no requirement that the right be reasonably necessary. The easement can relate to the business use of the dominant owner. 
  • The dominant and servient owner need to be different, but it is not fatal if the same person owns both fee simples. It is common for a tenant to have an easement over the landlord adjoining land. In order to aid land development the Law Commission would allow the owners to be the same if the plots have different registered titles. 
  • The right must be capable of grant is the most difficult requirement. List of easements isnt closed. So long as a novel right fits within the requirements there is no bar to its recognition. Rights must be capable of clear definition. 
  • No positive obligation on servient owner- Rance v Elvin. Limits to the Rance principle may be seen in Moncrieff v Jamieson where Lord Scott indicated that use of a swimming pool involves too many positive obligations to be acceptable. Fencing- Crow v Wood recognised it to be capable of grant and Denning described it as an easement albeit in spurious form. Far more efficient to place the obligation on the land owner who has accepted it. Sensible for the law to enforce a custom that each farm adjoining the common land should be responsible for fencing its own boundaries. 
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Smith 'Property Law'

  • Law Commission has recommended that it should be capable of existing as a land obligation only. 
  • No new negative easements- right to light is a negative one. Phipps v Pears. Phipps says that the future development of negative rights should be within the sphere of covenants. 
  • No claim to possession- London and Blenheim Estates said it was a matter of degree. Baker 'a small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another.' In Moncrieff Lord Scott was dismissive of the London ruling. Parking cars- accepted by all three Lords in Moncerieff that the right to park a car can be an easement so this now seems settled. Only problem relates to the extent of the right. The area over which the right needs to be exercised must be clearly marked. Batchelor shows that a claim to use a normal domestic garage would fail. Lord Scott in Moncrieff said that the 'no reasonable use' test from London was wrongly decided. Though Neuberger was impressed by Scott, three factors persuaded him not to express a firm conclusion- it will still be necessary to assess the degree of ouster of the servient owner that will defeat the claim. The Law Commission proposes the abolition of the 'prevents any reasonable use test'. This was designed to permit a generous approach to the recognition of such easements, provided they do not amount to claims to exclusive possession. 
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Smith 'Property Law'

  • creation- deed needed for legal interest and writing for equitable. Entry of notice is required. As for transfer, easements pass automatically on the transfer of dominant land. Implied easements are legal provided its implied into a deed or conveyance. Doesnt need to be registered. Wheeldon v Burrows. The reason for this rule is related to the rule that the grantor shall not derogate from his grant. 
  • contemporaneous sales- the rule has developed so that contemporaneous sales are treated so that each purchaser obtains rights as against the other under the more generous implied grant rules. It doesnt matter if conveyances are executed at different times, it is the time of the contract that is crucial. Not sufficent that the sales are close together. 
  • Implied reservation- recognised in necessity. There must be a transaction in which the easement can be implied. Nickerson v Barraclough CoA said that the easement is based on the parties presumed intention. It seems unlikely that anything other than access will be treated as necessity. Stirling LJ limited the category to 'an easement without which the property retained cannot be used at all, and not merely necessary to the reasonable enjoyment of that property.' Test by Parker from Pwllback Colliery v Woodman- 'the law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intentions of the parties to a grant of real property, with reference to the manner or purposes in and for which the land is granted or some land retained by the... 
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Smith 'Property Law'

  • ... grantor is to be used.' Limits- Lord Atkinson said 'it is insufficient that the right claimed is what is convenient or what is usual, or what is common, or what is simply reasonable, it must be necessary for the use and enjoyment in the way contemplated by the parties.' Use need not be certain at the time of the grant as long as it is in contemplation. Few cases in which it is accepted. The clearest example is where there is a reciprocal right as between the two tenements. This is more obvious where two houses support each other. 
  • Implied grant- the CoA in Kent said that Wheeldon applies where the same person occupies both plots prior to the sale, whereas s62 operates where there is diversity of occupation. 
  • The rule in Wheeldon v Burrows- Overall cases support the view that the easement must fulfill both continuous and apparent and necessary for reasonable enjoyment tests. Time of exercise- the requirement that the right be exercised at the time of grant need not be taken literally. Sufficient if it has taken place in the recent past. 
  • LPA 1925 s62 implies words into conveyances and leases. These words suffice to pass existing easements exercised by the grantor over another persons land, although they would pass anyway. Real significance is ability to create new easments on the conveyance of one of two plots. If a right (in the form of a licence) has been earlier exercised by the occupier of the plot conveyed, it will turn into a full easement on conveyance. International Tea Stores v Hobbs.
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Smith 'Property Law'

  • s62 doesnt need easement to be continuous and apparent, nor any element of necessity. The single restrictionis that there must have been diversity of occupation prior to the conveyance. Operation of s62 is wide. The right must be capable of being an easement or profit is a requirement. Must look at the nature of the user. A right personal to a person will not fall in s62. S62(4) allows for contrary intention to be effective. No rights can be implied over land that the grantor doesnt own. Right need not be enjoyed right up to the time of the conveyance. 
  • Contracts for sale- s62 only applies to conveyances and doesnt apply to contracts. Wheeldon is less restrictive in this aspect. Courts have been prepared to imply identical rights into a contract. Can a conveyance be rectified if it implies greater rights than those provided for by the contract? Yes in Clark v Barnes. 
  • Limits on s62- most important limit is that it applies only if there has been prior divesity of occupation of servient and dominant tenements. Limit formulated in Long v Gowlett. Supports the idea that continuous and apparent easements fall within s62 even without diversity. Right to light doesnt require prior diversity of occupation. 
  • Limits on Wheeldon- Kent held that Wheeldon does not apply if there is diversity of occupation. The use has to be by the common owner. In Kent is correct there is no use for overlap of the principles. If Platt is correct and s62 applies to continuous and apparent easements (without diversity) then Wheeldon may be regarded as redundant...
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Smith 'Property Law'

  • ... apart from its application to contracts. Law Commission finds the distinction between implied reservation and grant difficult to justify. Particular problems are faced by successors in title to two plots by a single owner in the distant past, where rights will vary according to what was sold first. The entire law of implied easements is thought to be in need of reform. The effect of s62 turning licences into easements has been criticised. The Wheeldon v Burrows rules would also disappear, all implications should be based on necessity for reasonable enjoyment. 
  • Prescription- the law as to prescription is highly technical, artifical and out of date. Prescription therefore penalises and discourages neighbourly conduct. The Law Commission advocates the retention of prescription but criticises many of the current rules. Want a single criteria- 20 years use. The servient owner who wishes to challenge a claim before this statutory 20 years is up can normally take the simple step of denying entry to the dominant owner. This will stop the time running and any attempt by the dominant owner to use for to enforce the claim with result in its failure. 
  • The Law Commission would adopt most of the 'as of right' rules though removing acquiescence from its central role. 
  • Force- Pumfrey J said that once it is apparent that the servient owner 'actually objects and will back his objection by physical obstruction or legal action' that the user is contentoius.
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Smith 'Property Law'

  • Permission- an inital permission doesnt necessarily govern the entirety of the future user. Tolerated user was seen as no defence in Mills v Silver, however it may be a relevant factor in determining the quality of claimants user. 
  • Courts have held that prescription only operates in respect of claims that affect the fee simple. A tenant uses and acquires an easement on behalf of the fee simple. Law Commission isnt recommending reform. 
  • Repair- servient owner may owe limited duties where there is an easement of support. The lack of duty to repair a right of way is unlikely to change. Dominant owner has a right to enter to repair at their expense. There may be a contractual duty on the servient owner to repair and in appropriate cases this may be implied. Continued use of the easement is likely to be conditional on contributions made. 
  • Once a line of right of way has been established the servient owner has no right to change it. The dominant owner cannot object to a realignment that has no disadvantage. Conduct of the servient owner inconsistent with the easement is a nuisance. 
  • Termination- most effective by deed. If the same person becomes owner they terminate. Abandonment- no set periods. James v Stevenson 'it is one thing not to assert an intention to use a way, and another thing to assert an intention to abandon it.' No use for 50 years hadnt abandoned. 
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Smith 'Property Law'

  • courts more willing to allow abandonment where the right is connected with a building on the dominant land that has been demolished and not replaced. Moore v Rawson- the right to light had been abandoned by not having a window in the building for 3 years. Abandonment of rights of way is hard to establish. Each case on its own facts. It is not clear if intention suffices, or whether servient owner has to rely on it before the easement will terminate. Law Commission suggests a rebuttable presumption of abandonment after 20 years. 
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