Easements and Profits

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Easements and Profits distinguished

Similarities - both easements and profits are proprietary interests in land

Differences - easements are rights over the land of another

Profits are rights to entere on the land of another and take the profits of it.

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Characteristics of easements

A dominant and servient tenement

The easement must benefit land and there must be 2 pieces of land

Diversity of ownership

The dominant tenement and the servient tenement must be owned or occupied by different persons

Subject of grant

The right claimed must be capable of forming the subject matter of a grant. The basic point is that the right must be sufficiently certain

Easements should not involve the owner of the servient land in positive obligations

Regis Property v Redman

An easement cannot subsequently be used for a different purpose

This covers intensification of use - Jelbert v Davis

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Characteristics of easements 2

Accomodates the dominant tenement

The easement must benefit the dominant land as such and not the present owner not activities which the present owner is carrying on

Hill v Tupper

Facts

The owner of a canal granted X the exclusive right to put pleasure boats on the canal for profit

Principle

Such a right is just a personal right which did not benefit the land as such

  • The dominant land and the servient land must be reasonably adjacent otherwise there could be no benefit
  • Whether a business carried on on the land is so closely connected with the land that it does benefit it (Moody v Steggles)
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No new negative easements?

Phipps v Pears

Facts

Claim to an easement to protection of one house from rain and frost by another house.

This would mean that the other house could not be demolished. This claim was rejected

Principle

The courts are reluctant to allow the creation of new negative easements which would be an undue restriction on an owner's rights over his land. 

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Easements cannot amount to exclusive use

Copeland v Greenhalf

Facts

The claimant owned land on which the defendant had stored and repaired vehicles for 50 years.

He claimed an easement by prescription

Principle

This was a claim to beneficial use of the land and so could not be an easement. This principle has been modified in relation to use of land for car parking

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Car Parking

Batchelor v Marlow

Facts

A claimed a right to park up to 6 cars between 9-6 on land owned by B.

A claimed an easement as B had 120 hours a week to use the land as he wished

Principle

B had no reasonable use for the land for parking as he could not park on it when parking spaces were most needed. The claim failed.

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Summary

Registered land

  • Legal easements and profits created expressly are registrable dispositions
  • Express legal easements and profits and equitable easements, which were overriding before 13th October 2003, remain overriding
  • New equitable easements and profits are now minor interests
  • The only new legal easements and profits that can be overrriding are those created- by implied reservation
  • -by implied grant
  • -by prescription

Unregistered land

  • Legal easements are binding on all 3rd parties
  • Equitable easements must be registered as land charges if created on or after 1st January 1926. Those created before will bind purchasers who have notice of them and will bind donees automatically.
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Easements, profits and 3rd parties

Express grant

  • Legal - deed
  • Equitable - written agreement

Implied reservation in a conveyance

  • Necessity -eg access to land locked land. Adealon International Corp. Proprietary v Merton
  • Common intention  -  Wong v Beaumont Property Trust Ltd

Estoppel

Ives v High

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Acquisition of implied easements under Wheeldon v

Wheeldon v Burrows

Principle

On a grant of land, the buyer willl acquire, by implication all easement which:

  • are continuous and apparent
  • have been and are at the time of the grant used by the grantor for the benefit of the land

These easements operate in favour of the buyer and against the seller

Legal or equitable?

This depends on the document which transferred the land

If it was a deed, the easement will be legal, but if it was simply by an enforceable written agreement, it will be equitable

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Acquisition of implied easements under S62(1) LPA

  • The provision provides that on a conveyance of land, certain rights that it has are automatically also conveyed.
  • What is controversial is the use which has been made of it to create easements where none seemed to exist before.

Wright v McAdam

Facts

The defendant let a flat to the claimant and gave her permission to store coal in it. He later granted her a new tenancy

Principle

The grant of the tenancy was a conveyance under S62(1) and as a right to store coal was a right capable of being granted by law the grant of the new tenancy had the effect of converting what was a licence into an easement.

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Acquisition of implied easements under S62(1) LPA

In Sovmots Investments Ltd v Environment Secretary it was considered that 'diversity of occupation is need for S62 to apply. This has now been doubted.

P&S Platt Ltd v Crouch

Facts

X bought a hotel from Y, but Y retained adjacent land no which hotel guests had been allowed to moor boats, fish and walk. X had an option to buy it, but failed to exercise it in time.

Principle

X acquired an easement over the land for the purpose of S62 as the rights were 'continuous and apparent' and it did not matter that previous to the sale both pieces of land were occupied by the same person

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Acquisition of implied easements under S62(1) LPA

In Sovmots Investments Ltd v Environment Secretary it was considered that 'diversity of occupation is need for S62 to apply. This has now been doubted.

P&S Platt Ltd v Crouch

Facts

X bought a hotel from Y, but Y retained adjacent land no which hotel guests had been allowed to moor boats, fish and walk. X had an option to buy it, but failed to exercise it in time.

Principle

X acquired an easement over the land for the purpose of S62 as the rights were 'continuous and apparent' and it did not matter that previous to the sale both pieces of land were occupied by the same person

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Prescription

Prescription - means acquisition of easements and profits by long use

Conditions for prescription

  • Force
  • Secrecy
  • Permission
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