Subject to a Grant

• What are the four elements for the last element: Capable of forming the subject matter of a grant?

  1. Sufficiently definite
  2. Within the general nature of rights traditionally recognised as easements
  3. No positive burden on the Servient Owner
  4. Ouster Principle
• What is the meaning of Sufficiently definite (provides limitations to the right of easement)?

  Meaning: that anything overly broad is not going to be considered as sufficiently definite
• What is the requirement for Sufficiently definite?

  As proprietary rights must be clearly defined: an easement must clearly define to what burden the servient owner is being subject to & also what rights the servient owner must submit
• What is the L.P of Harris v De Pinna?

  L.P: there can’t be a right to a good view as there is no objective test of what a good view is & is hard to clarify who or want you’re going to have a claim against
• What is the L.P of Hunter v Canary Wharf?

  L.P: as rights must be clear, there is no general right to television reception
• What is the L.P of Re Ellensborough that can challenge the requirements for Sufficiently Definite?

  L.P: rights that can be seen as being too general can still be granted with an easement if these rights are received through a defined channel (e.g if recognised by the courts)
• Can a dominant owner aimlessly wander at will over another's land?

  NO:

  there is a defined track & function in purpose of using that particular bit of their land that must be followed
• What is the meaning of the second element: Within general nature?

  • A new species of burden cannot be created
  • Can’t be completely novel for there to be an easement: it has to reflect the sort of rights & sorts of behaviours that already exist as easements
• What is the L.P of Phills v Pears?

  L.P: CoA refused to accept that a right of protection from the weather could constitute an easement

  (right was seen as negative as the dominant owner was not claiming any right to do something on the servient land & servient owner would be prohibited from acting out rights that they were entitled to)
• What is the L.P of Regency Villas v Diamond Resorts?

  L.P: Novel easements can be created, but if…

  1. They must exhibit the four characteristics
  2. & If a positive right that’s being claimed is already comparable to an existing easement
• What is the L.P of Regency Villas V Diamond Resorts regarding the third element?

  L.P: Servient owner is required to allow the dominant owner to exercise their right without interference if an easement is granted BUT servient owner is not required to keep the subject matter of the easement in repair (dominant owner has to undertake any necessary maintenance & repairs)
• What is the L.P of Duffy v Lamb?

  L.P: as the servient owner is only obligated to not interfere in the dominant owner’s right, they are not obligated to maintain a continuous supply of utility for a right to the supply of water & electricity
• What are the L.Ps of Copeland v Greenhalf? (where G effectively prevented C from using her driveway)

  L.P: Right must not deprive the servient owner of all beneficial proprietorship & can’t deny somebody else the right to use their own land (interference can’t be too excessive)

  L.P: A claim cannot restrict servient owner from possession of land
• What is the meaning of an Ouster Principle?

  = prohibits rights which exclude the servient owner or amount to a claim to joint ownership
• What is the L.P of Batchelor V Marlow? (where if parking cars in designated spaces for significant portions of the day be considered an easement?)

  L.P: for parking cases, it will be held that the servient owner would be denied reasonable use of their land if the courts allowed the easement that the Dom owner could park their case for the duration of the working day

  
  

  L.P: test for the Ouster Principle was one of degree & the line would be crossed if the right is so extensive that the servient owner is left with no reasonable enjoyment of their land
• What is the L.P of Moncrieff V Jamieson that was upheld in Kettle V Bloomfold?

  L.P: the reformulated test for the Ouster Principle is not a test of ‘reasonable use’ but whether the servient owner remained in possession & control of the land
• What is the test established in Kettle?

  1. If the easement leaves the servient owner with some use & the means of controlling & possession their own land, then it will satisfy the reasonable use test
  2. A right will be disqualified as an easement if it amounts to an invasion of the servient land & exhaustion of their beneficial use of their land