Easements

What is an easement?

Right of a landowner to enjoy limited use of the land of another.

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Dominant tenement

Benefited land

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Servient tenement

Burdened land

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Examples of types of easements

Right of way, right to light, right to water, right to water, right to drainage, right to storage, right to support

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Essential criteria for an easement recognised in...?

Re Ellenborough Park [1956]

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Criteria for an easement to be recognised (4)

1 Dominant and servant tenement, 2 The right must accommodate the dominant tenement, 3 Dominant and servant owners are different persons, 4 Right must be capable of being the subject matter of a grant

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Authority- Land needs to be readily available

London & Blenheim v Ladbroke Retail Parks Ltd [1994]

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Explain- The right must accommodate the dominant tenement

The easement must benefit the land itself (dominant tenement) not the person who owns the land

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Case- Right of a tenement to store coal in his landlord's shed

Wright v Macadam [1949]

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Case- It is not possible to have an easement over your own land

Roe v Siddons [1888]

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Case explain- Quasi-easement

Wheeldon v Burrows [1879]. A potential easement that then becomes an easement

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Explain- An easement as the subject matter of a grant

There must be a capable grantor and grantee, legal capacity

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Authority- Right to storage. The right must not amount to exclusive possession of the servient land

London & Blenheim Estates v Ladbroke Retail Parks Ltd [1994]

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Authority- Right to parking. The right must not amount to exclusive possession of the servient land

Batchelor v Marlow [2003]

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Authority- Mere rights of recreation and amusement will not amount to an easement

Re Ellenborough Park [1956]

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Authority- Must be a right and not a permission

Burrows v Lang [1901]

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Explain- No negative easements. Authority?

No action should be needed on the park of the dominant owner to enjoy the benefit of their easement. Phipps v Pears

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Authority- There should be no expenditure by the servient owner

Regis Property Co Ltd v Redman

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3 methods of creating an easement

Statute, grant, prescription

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Example of a statute as a method for creating an easement

Electricity company putting up pylons over land the belongs to another. They have a right by law to do so.

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Explain- Express grant as a method for creating an easement

The document will expressly grant an easement

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Statute- Easement created by deed

Law of Property Act 1925 s.52(1)

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Statute- Even if the right isn't included in the deed, it can still exist

Law of Property Act 1925 s.62 ensures that any existing easements that benefitted the land are conveyed to the new owner of the land without having to expressly include them in the conveyance.

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Types of implied grant of an easement (2)

Easement by necessity, easement of common intention

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Explain with case- Easement by necessity

Easement is necessary for the land to be useable. Liverpool City Council v Irwin [1977]: Block of flats, implied easement to allow residents to use the stairs, lifts etc.

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Explain with case- Easement of common intention

Wong v Beaumont Property [1956]: The property was let to be used as a restaurant. There was an implied easement to allow a ventilation duct to be installed as it was the common intention for the property to be used as a restaurant

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Is it easier to prove common intention or necessity?

Common intention

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Difference between s.62 LPA 1925 and Wheeldon v Burrows (3)

1 s.62 requires a conveyance for an easement to be created. W v B can create an easement if there is an equitable interest. 2 s.62 requires diversity of occupation, W v B requires common occupation. 3 s.62 allows more rights to be easements

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Is it easier to satisfy s.62 or W v B?

s.62. W v B has additional criteria

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Criteria under Wheeldon v Burrows for quasi-easements (2)

1 "continuous and apparent", 2 "necessary for the reasonable enjoyment of the land"

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Explain- Prescription as a method for creating an easement

Acquiring an easement through long use.

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When an easement is acquired through prescription, it must be shown to be... (3)

Without violence, without secrecy, without consent.

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3 methods for acquiring an easement through prescription

1 common law 2 By lost grant 3 Prescription Act 1832

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Explain- Prescription at common law

Exercised from "time immemorial" (1189). Not a very useful method

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Explain with case- Prescription by lost grant

The presumption that there was once a grant as the easement has been used for such a long time. Bryant v Foot [1867]

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Prescription Act 1832

20 or 40 years of uninterrupted use. Written or oral consent affects the length of this time period.

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The 4 remedies for interference with an easement

Abatement, injunction, damages, nuisance

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Explain- Abatement as a remedy

Allows a person to enter another's land to end the interference

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Case- Injunction as a remedy

Kettel v Bloomfold Ltd [2012]. At the court's discretion, must be for something more than trivial.

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3 methods of extinguishment of an easement

Merger, release, change of character

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Merger as extinguishment

If there is unity of ownership and occupation, an easement will end

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Release as extinguishment

Express, implied or by statute. Presumes there has been abandonment of the easement.

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Case- Change of character as extinguishment

Attwood v Bovis Homes Ltd [2001]

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Easements

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