Easements

• What are easements?

  A right of a landowner to enjoy a limited use of neighbouring land (denial of absolute ownership)
• How are easements positive in character?

  They can allow someone to act on another’s land or prevent another from acting on their own land & allow the dominant landowner to go to the servient land to use some facility
• How are easements negative in character?

  Easements can create a right for the dominant landowner to receive something from the servient land (seen as negative as rights can prevent the servient owner from using their land as freely as they might otherwise be able to do)
• What is the first question regarding easements?

  1. Nature (the ‘content’ question): How do we establish whether something could be an easement?
• What is the second question regarding easements?

  2. Creation (the ‘acquisition’ question: Has the right met the required rules for creation?
• What is the last question regarding easements?

  3. Enforceability (the ‘defences’ question): What requirements are there so that a right can bind third parties?
• What is the L.P of Re Ellenborough Park?

  L.P: Established the four requirements for an easement
• What is the first element of an easement established by Re Ellenborough Park?

  1. There must be a dominant and servient owner
• What is the second element of an easement established by Re Ellenborough Park?

  2. An easement must accommodate the dominant tenement
• What is the third element of an easement established by Re Ellenborough Park?

  3. The dominant and servient owners must be different persons
• What is the last element of an easement established by Re Ellenborough Park?

  4. The right claimed must be capable of forming the subject matter of a grant
• What is the meaning of the first element: Dominant & servient owner?

  • Dominant tenement (land) has the benefit of the easement
  • Servient tenement (land) has to “suffer” the easement
• What does it mean when the dominant owner must have an identified piece of land?

  requirement for there to be an identified piece of land means that the right of an easement is intrinsically linked to the land itself: means that it is pertinent to the land
• What is the meaning of pertinent to the land?

  pertinent to the land: belongs to the land (means that not everyone can have the right of easement to the land, there has to be someone who has an interest in that plot)
• What is the meaning of proliferation?

  Proliferation: rapid increase in the number or amount of something
• What is the L.P of London & Blenheim Estates v Ladbrooke Retail?

  L.P: if the dominant land can not be identified at the time that the easement was created, the dominant owner can not obtain a grant of an easement to benefit additional land that they may acquire in the future
• What is the meaning of the second element: Must accommodate dominant land?

  • The easement must benefit the land rather than the landowner
  • = The benefit must enhance the dominant land & relate so closely to the normal functioning of the land rather than just being merely of a personal benefit to a particular landowner
• How does Re Ellenborough Park provide more info for the second element?

  An aspect of this characteristic is the need for proximity so that the dominant land can get benefit as well
• What is the L.P of Hill v Tupper? (where Hill raised a claim to prevent D from renting out boats to be used on the canal)

  L.P: The dominant owner will not be granted the right of an easement if their claim of exclusive easement is recognised to be for personal commercial advantage rather than a property right attached to their land (seen as Dom owner exercising a negative right)
• What is the L.P of Moody v Streggles? (where Dom owner was allowed to place a sign on the Sevient land as sign could be argued to have indicated & thus benefit any commercial enterprise that would be conducted on the dominant land

  L.P: held that a right to erect a sign on the servient land to indicate & advertise the dominant owner’s business was an easement
• What is the L.P of Regency Villas Title Ltd V Diamond Resorts?

  L.P: Supreme Court held that rights of recreation & amusement offered by the dominant owner can be enough to accommodate the dominant land as they can make the land more attractive
• For the second element, what must the benefit of an easement provide to the Dom land?

  Benefit must enhance the economic value of the dominant land & also to enhance the normal enjoyment of the land as well
• What are two questions that are asked to determine if an easement will provide the required benefits?

  1. Consider the nature of the dominant land
  2. Consider the right itself
• What is the meaning of the third element: Different servient & dominant owners?

  MEANING: you can’t assert a right against yourself as if there is ownership of both land, there is no need for an easement (there MUST be a diversity of ownership)
• What is the L.P of Wright v Macadam?

  L.P: as an easement can be attached to an estate in the land, a tenant can enjoy an easement over their landlord’s servient land because the easement is attached to their leasehold estate
• What is the meaning of the last element: Capable of forming the subject matter of a grant?

  = As easements are a legal interest in land, they must be granted by deed by a grantor to a grantee
• Who is the capable grantor?

  Capable grantor: an appropriate estate holder in the land out of which the easement is granted
• Who is the capable grantee?

  Capable grantee: The dominant tenement owner must be legally competent to receive the grant (freeholder or leaseholder)