- Created by: Georgia
- Created on: 24-04-17 00:58
1. Identify the legal issues that is being asked in the question
2. Then it must be considered whether the right is CAPABLE of being an easement. The test for this is Re: Ellenborough Park (1956).
i) There must be a dominant tenement (DT) and a servient tenement (ST) – one must have the benefit and the other be burdened by that benefit.
ii) DT and ST must be owned by different people (even if only in leasehold estate)
iii) The right being considered must accommodate the DT
(Moody v Steggles (1979) right to hang a sign on an adjoining property was an easement).
iv) The easement must be capable of being the subject of a grant or conveyance of a deed
· Must be capable grantor and grantee
· Capable of being defined by words or on a plan
· Alfred’s Case (1610) right to a view is not an easement as it is not sufficiently definite.
3. Some additional conditions must be considered to determine if the right is ACCEPTABLE as an easement
i) Must not require positive action by the ST owner
· Regis Property Co Ltd v Redman  right to a supply of hot water is not an easement as it would require money to maintain
· Exception is when it relates to maintaining a boundary fence (Crow v Wood ).
ii) No exclusive use – can’t have an easement if it stops ST owner from using there land
· Copeland v Greenhalf  a right to park an unlimited no. of cars for an indefinite period of time amounted to a claim for exclusive possession, incapable of being an easement.
· London and Blenheim Estates v Ladbroke Retail Parks  L&BE owners of land which Co-op store had an easement for car parking. Easement provided for additional rights of car parking if the S owner acquired more adjoining land. Co-op sold their D land to Ladbroke, who in turned claimed additional parking rights when L&BE acquired more land. Ladbroke were not entitled to more parking rights as such claim would undermine the certainty of the easement, potentially depriving the S landowner of the reasonable use of unidentified land in the future.
· Batchelor v Marlow  right to park can exist as an easement, but held that this would not be the case if the parking was such that the S owner was left without any reasonable use of the land.
· Virdi v Channa  an easement allowed for parking half a car on the area of ST land of equivalent size to half a car. Did this amount to a claim for exclusive possession or denial of reasonable enjoyment of the ST land? No. Batchelor v Marlow was distinguished on its facts. Although the land would be filled when a car was partially parked on it, the ST owner could still alter…