Easements

• What is an easement Easement

  A legal right benefitting one parcel of land, over another parcel, which bears the obligation. these granted rights can either dictate specific usage of the ST or restrict the owner of the DT from certain actions.
• Nature of Easements - Positive Easements

  Grants the benefiting party (dominant tenement) the right to use the serviant Land
• Nature of Easements - Negative Easements

  Restrict the servient tenement from certain uses that might intefere with the benefiting party's rights
• Requirements for an Easement : Re Ellenborough Park 


  • Necessitates the presence of both a dominant and servient tenement
  • The easement must accommodate the dominant tenement
  • The owners of the dominant and servient tenement must be different people
  • The asserted right must be capable of being formally granted
• In the CA's ruling in Re Ellenborough Park, Evershed M.R. established that for a right to be considered as an easement, it must meet 4 criteria'
• Requirements for an easement : The presence of both a dominant and servient tenement.

  
  

  • Dominant Tenement : Piece of land that benefits from a right of an easement.
  • Serviant Tenement : Piece of land that bears the burden of the easement.
• Requirements for an Easement - The presence of both a dominant and servient tenement. 

  • Easement cannot exist in Gross

  both parcel of land must be attached, ensuring that the easement benefits the land and its owners rather than being purely personal.
• Requirements for an easement - The easement must accomidate the dominant and servient tenement. 

  • Both tenements involved in the easement must be in close proximity to each other. 

  Bailey v Stephens : It was famously determined that the owner of an estate in Northumberland could not legally grant a right of way over it to someone who owned an estate in Kent,as it would not benefit the land in Kent. 
• Requirements for an easement - The easement must accomidate the dominant and servient tenement. 

  • Both tenements involved in the easement must be in close proximity to each other. 

  Re Ellenborough Park: it was established that the right to use the park accommodated the dominant tenement (a residential property) because the houses were sufficently nearby to benefit from the easement to use the garden
• Requirement for an easement - The easement must accomidate the dominant and servient tenement. 

  • The easement must benefit the use of the dominant property in a manner related to its normal use, rather than soley benefiting the owner of the dominant tenement personally. 

  Hill v Tupper: The court ruled that the exclusive privilege of placing pleasure boats on a canal, primarily benefiting the business, did not constitute an easement. this decision was based on the fact that the privilege did not directly benefit the land itself and instead hindered others from using the canal for boat sailing.
• Requirement for eaements - The easement must accomidate the dominant and servient tenement. 

  contrast : cases involving rights benefitting a business or trade conducted on the dominant tenement: 

  Moody v Steggles : The court recongnised the right to hang an inn sign on adjacent property as an easement, despite its personal benefit to the business. The presence of the sign improved the visibility and recongition of the property.

  Platt v Crouch : The owners of a hotel claimed a right for guests to moor boats to the adjacent land. This was accepted as an easment.
• Requirement for an easement - the owners of the dominant and servient tenement must be different people 

  • The individuals owning the land benefiting from and bearing the burden of the easement must be different.

  Roe v Siddons : it was affirmed that an individual cannot hold an easement over their own land.
• Requirement for an easement - the asserted right must be capable of being formally granted.

  The right claimed to be an easement must be capable of being granted by a deed, This means :

  1. The easement must have been granted by someone with the authority to do so, to a definite person
  2. the easement must be sufficiently certain
  3. it must be the type of right typically recongised by the courts as an easement.
• Requirement for an Easement - the asserted right must be capable of being formally granted.

  1. The easement must have been granted by someone with the authority to do so, to a definite person 

  • at the time of the grant, there must be identifiable individuals or entities to whom the easement can be granted.
  • it is not permissible to grant an easement to a variable group of people such as ‘all inhabitants of a certain village’ because it is not clear who exctly will benefit from the easement .
• Requirements for an Easement - the asserted right must be capable of being formally granted.

  
  

  2. the easement must be sufficiently certain  

  • the right must be definite enough to be described in a deed that is precise and not vague
• Requirements for an Easement - the asserted right must be capable of

  being formally granted.

  
  

  2. the easement must be sufficiently certain  

  
  

  contrast : examples that have fallen foul of this rules.

  • a right to indefinite privacy : Browne v Plomer
  • a right to view : Aldred’s case, claim was too subjective and vague
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  
  

  3. it must be the type of right typically recongised by the courts as an easement

  
  

  There are numbers of factors used in deciding whether a right is of type that can be recognised as an easement :

  1. The right should be of 'the same kind’ as the existing easement
  2. it should not oblige the servient owner to spend money
  3. it should not amount to possession of the servient tenement - the servient owner must still be able to use the land.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  1. There right should be ‘of the same kind’ as the existing easment

  • For a right to qualify as an easement, it must belong to the same general category of rights recognised by law as capable of being easements. This implies that the right should be analogous or comparable to existing easements.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  1. There right should be ‘of the same kind’ as the existing easment

  Examples of existing easements

  • Right of way : Borman v Griffith
  • Right to signage : Moody v Steggles
  • Right to light : Collis v Home & Colonial Stores
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  1. There right should be ‘of the same kind’ as the existing easement

  • given that easements are proprietary rights tied to the land, courts exercise caution when considering new rights that could bind successive landowners.
  • However, novel rights may still be recognised as easements.

  Dyce v Lady Hay : This principle was reinforced highlighting the need for the law to remain flexible in recognising novel easements as societal needs and practices evolve.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  1. There right should be ‘of the same kind’ as the existing easement

  Examples of Novel easements

  • Right to use the toilet : Miller v Emcer Product
  • Right to use a letter box : Golbert Edward
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  1. There right should be ‘of the same kind’ as the existing easement

  contrast : Novel Negative Easements

  • courts are reluctant to acknowledge the establishment of novel negative easements, which impose restrictions on how the servient owner can utlise their land and develop their property

  Phipps v Pears : The court rejected a claim seeking an easement to protect from adverse weather conditions, citing that the damaged walls were not sufficient grounds for such easement.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  1. There right should be ‘of the same kind’ as the existing easement

  contrast : Novel Negative Easements

  Hunter v Canary Wharf  : claimants filed a nuisance action against the owners of Canary Wharf, alleging that the construction building obstructed television signals to their residences. However, the court rejected their claim, indicating that the right to receive uninterrupted television signal could not be recognised as an easement.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  1. There right should be ‘of the same kind’ as the existing easement

  contrast : Novel Negative Easements

  Decision in Hunter v Canary Wharf : decision was based on the notion that the benefit of such right would be too vague, and its enforcement would excessively impede the use of the servient land. 
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  1. There right should be ‘of the same kind’ as the existing easement

  Exception Examples of Novel established negative excessively

  • Right to support a bulding : Dalton v Angus
  • Right to light through a window : Prescription Act 1982.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  2. It should not oblige the servient owner to spend money

  • it is a genral rule that the land burndered by the easement (servient owner) should not bear to spend money as a result of an easement.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  2. It should not oblige the servient owner to spend money

  Regis Property Co Ltd v Redman : held that a claim to the supply of hot water was not an easement

  • the claimants could however, go onto the land and maintain the facilities themselves. - Jones v Pritchard
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  2. It should not oblige the servient owner to spend money

  Exception Rule : The easement of fencing

  • the Servient tenement may be required to contribute to the expenses associated with maintaining a fence to confine livestocks.

  Crow v Wood : the focus was on agricultural fencing implemented to prevent moorland sheep from encroaching onto the farm. despite requiring the servient tenant to incur expenses, the court recongised the exisentece of an easement for fencing.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  3. it should not amount to possession of the servient tenement - 

  Since easements are incorporeal hereditaments, they do not grant the dominant owner ownership of the servient land, Rather they afford the dominant owner the right to utilise the servient land for specific purposes shared with the servient owner. 
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  3. it should not amount to possession of the servient tenement - 

  Easement for storage too much?

  Coopeland v Greenhalf : a wheelwright sought to assert an easement allowing the storage of wheels and vehicles on a narrow strip of land ajacent to his workshop. however, the court determined that the right to claim was viewd as an assertion of full control, excessively limiting the Servient’s owners ruse.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  3. it should not amount to possession of the servient tenement - Easement for storage too much?

  Grisby v Melville : High courts deliberated on whether an easement of ‘unlimited storage’ could legally exist. they determined that such a right was too expansive to qualify as an easement. 
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  3. it should not amount to possession of the servient tenement - 

  Easement for storage too much?

  contrast

  Wright v Macadam : a tenant storing coal in a shed on the servient land was recongised as a valid easement.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  3. it should not amount to possession of the servient tenement - 

  Easement for Right to parking too much?

  Batchelor v Marlow : the right to park 6 cars on a strip of land all day was determined overly extensive to qualify as an easement. The court reasoned granting such right would essentially negate the servient owner’s ability to utilise the land effectively.
• Requirements for an Easements - the asserted right must be capable of being formally granted.

  3. it should not amount to possession of the servient tenement - 

  contrast

  Hair v Gillman : The right to park a single car on a plot of land spacious enough for 4 cars was recongnised as an easement, since it involved a clear and specific use of the land that did not unduly burderned the servient tenement.
• Methods of Acquiring an Easement

  • easements can be legal or an equitable interest.
  • Legal easements are created by statute, expressly, impliedly by deed or registered disposition and by prescription
  • Equitable easements are much rarer and sometimes results from parties failing to use the correct fomarlities for a legal easement.
• Methods of Acquiring an Easement 

  
  

  What is an Express grant?

  
  

  Servient owner who bears the burden of the easement, is granting the dominant owner the right to use their land for specific pruproses outlined in the easement agreement .
• Methods of Acquiring an Easement 

  
  

  Express Grant 

  Requirment for Legal easement :

  1. Created for the duration of the freehold or period of a leasehold
  2. Acquired by a deed
  3. Registration
• Methods of Acquiring an Easement

   Express Grant Requirment for Legal easement :

  
  

  2. As per s.52(1) LPA 1925, an easement must be acquired by a deed, and must be fully recognised

  • Equitable Easement

  altrnatively, if a deed is not required or not used, an equitable easement can still be establised under s.2 LPMPA.

  • In this case, written agreement to create can easement can operate a contract to establish legal easements.
• Methods of Acquiring an Easement

  
  

   Express Grant Requirment for Legal easement :

  
  

  3. Registration

  • Easements must be registered under s.27(2)(d) LRA 2002 because they are considered registrational dispositions.
  • This requirement ensures that the easment are officially recorded and documented with the Land Registry, which helps ensure they can be transferred with the property.
  • Equitable Easements must be recorded on the charges register as per s.32 LRA 2002 to maintain priority against susequent land purchasers.
• Methods of Acquiring an Easement

  
  

  What is a Reservation? :

  A right that is kept or retained by the seller when transferring ownership of the land