Easements PDF

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How to answer an easement question...

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EASEMENTS Element 1: There must be a dominant and servient tenement (Ellenborough; Riley) There must be a dominant and servient tenement. The benefit of an easement is attached to the land referred to as the ‘dominant tenement’ (dominant gets to use the servient land). The land benefiting from the right and burdened with the right must be clearly identified. (i) What constitutes a ‘servient tenement’? ‘You cannot have a servient tenement without an area. You must have lines defining some area’ (Pwllbach Colliery v Woodman). In Woodman, the right to dissipate dust over the adjoining land could NOT be an easement because the servient tenement(s) could not be ‘defined and pointed out’. One parcel of burdened land may provide a benefit for more than one parcel of land (Harada v Registrar of Titles). (ii) What constitutes a ‘dominant tenement’? If the right of easement is not attached to the ‘dominant tenement’/ ‘benefited land’—if the right is not attached to an identifiable lot of land (but to a person or corporation)- then it is an ‘easement in gross’ and not recognised at common law (Concord MD v Coles). Without ‘dominant tenement’/ ‘benefited land’, the alleged right of easement is only a personal right or licence if given to a person or entity (Gapes v Fish) or a public right if (theoretically) available to everyone (Bouquey v District Council of Marion; Concord MD v Coles). (iii) What if the identity of the dominant tenement is unclear? If the instrument creating easement is unclear as to the identity of the dominant tenement, court can look at surrounding circumstances to identify dominant tenement (Gas and Fuel Corp). (iv) Must the dominant tenement be corporeal hereditament/an estate in land? No, an incorporeal hereditament/non-estate real property right may be a dominant tenement (eg. A right of way is attached to a right to a profit a prendre* (a right to fish))(Hanbury v Jenkins). *Note: A profit a prendre is a legal right to enter land and to remove the produce from the soil of that land (for example, a right to harvest a crop or a right to timber grown on the land).

Element 2: The dominant and servient tenement must not be held and occupied by the same person (Ellenborough; Riley). (i) Were both (potential) tenements owned and occupied by the same person? There can be no easement when both (potential) tenements are OWNED and OCCUPIED by the same person; however, an easement can be created (expressly or impliedly) if the owner parts with possession (i.e. creates a lease) (Maurice Toltz; Borman v Griffth). Rationale: No one can acquire rights against themselves (Oleander). ‘You cannot have an easement over your own land’: Lord Esher MR in Metropolitan Railway v Fowler.

NOTE: concept of ‘quasi-easements’ (quasi=potential) (potential easement in the future)- same person owns a block of land which could potentially be divided into two blocks. Block A (front) can have a quasi-servient tenement; Block B can have a quasi-dominant tenement.

Element 3: The servient (burdened) tenement must accommodate the dominant (benefited) tenement (Ellenborough; Riley). (i) Was the benefit personal and unconnected to the land? A mere personal privilege or commercial advantage intended to benefit the owner of the dominant tenement but unconnected occupation of the land cannot be an easement (Hill v Tupper). The land must be more than a convenient incident to the right (Clos Farming). (ii) Were the lands sufficiently physically close for benefit to be conferred? The dominant and servient tenements need not be contiguous (Todrick v Western National Omnibus) But the lands must be sufficiently physically close for the dominant land to be dependent upon the state of the servient land, such that a benefit can be conferred (Dewhirst v Edwards). (iii) Was there a ‘real and intelligible’ nexus between the easement right alleged and the ‘normal enjoyment of the dominant tenement’? There must be a real and intelligible connection between the right and the normal enjoyment of the dominant tenement (Clos Farming Estate). Whether there is such a ‘requisite nexus’ exists in fact depends upon the ‘nature of the dominant tenement and the rights granted’ (Clos). Put another way, was the right reasonable necessary for the better enjoyment of that land as that type of land (Ellenborough)? It is relevant but not determinative nor ‘sufficient to show that the [proposed easement] right increased the value of the property conveyed, unless it is also shown that it was connected with the normal enjoyment of that property’ (Ellenborough).

Element 4: The right must be capable of forming the subject matter of a grant. Put simply: could a competent conveyer draft this? (i) Was the right too wide or vauge to form the subject matter of a grant? A right that is too vague and imprecise cannot rank as an easement (Riley). For example (too vauge/imprecise):  Right to freely and aimlessly wander over neighbour’s land (Riley)  A general right to privacy (Auerbach v Beck).  A right of prospect or view (Browne v Flower). But: ‘The law does not require exactitude to an excessive degree’ (Sunshine Retail). (ii) Was the right of some utility? Very low standard, see Ellenborough. (iii) Was the right substantially inconsistent with the possessory rights of the servient owners?

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Easement right must not amount to possession of servient land (Ellenborough) nor leave the servient land owner without reasonable use of their land (Owners of East Fremantle Shopping Centre). ‘In London & Blenheim Estates, Judge Baker QC said that whether or not a right to store goods or park motor vehivles constitutes an easement involves a question of degree. His Lordship said: If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant’ (Owners of East Fremantle Shopping Centre). Does the servient owner retain ‘possession and, subject to the reasonable exercise of the right in question, control of the servient land’ (Mocriff v Jamieson)? Keep in mind the following questions (of proportionality and degree): A.

What proportion of the servient land is subject to the exercise of the right?

B.

What was the ‘relative importance or significance of that part of the servient tenement over which an exclusive right is given to the servient tenement as a whole’ (Weigall v Toman).

C.

With the nature of the land in mind, to what extent does the exercise of the alleged easement right preclude the servient owner from exercising other rights of ownership (Owners of East Fremantle Shopping Centre; Clos Farming)?

D.

How transitory was the use of the easements (Miller; (Owners of East Fremantle Shopping Centre)?

-------------------------------------Creating of Easements (1) Was the transaction in question a grant or reservation of an alleged easement? ‘Grant’= servient owner grants the dominant owner an easement over his or her land for the benefit of the (dominant) granted land. Any implied grant will add to the interest granted and operate against the vendor/grantor. ‘Reservation’= vendor conveys land to a purchaser but reserves an easement over that land for the benefit of his or her (dominant) retained land. Easements implied in will give the grantor rights exercisable over the land conveyed. Important: courts are far more willing to imply easements in favour of the grantee than of the grantor (Pwlbarch Colliery).

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(2) What are the formalities for an express grant or reservation For the express creation of a legal easement in Australia, a deed is essential. In Torrens system, a registration is deemed to take effect as if it were a deed (s 85TLA). In WA, the easement must be registered both on the land benefited and burdened (s 65A(1)TLA). But in equity, there is no need for registration, if there is an enforceable contract for creation of easement (Bucholz). (Ie. Specifically enforceable contract or part performance).

(3) Implied Grants or Reservation of Easement by way of Common Intention A common intention easement will be ‘impliedly created not [only] upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easement as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner of purpose in and for which land granted or some land retained is to be used’ (Pwlbach Colliery). Two elements must be satisfied: A)

Was there ‘common intention as to some definite and particular use’? (Stafford v Lee)

B) And is the alleged easement claimed ‘necessary to give effect to it(purpose)’? (Stafford v Lee) In order to determine the common intention of the parties, the court may take into account the terms of the conveyance and the communication between parties during the conveyance process (Adam v Shewbury).

(4) Implied Grants or Reservation by way of (Absolute) Necessity. Easements of necessity are implied when the owner of the land disposes of land and retains land which is landlocked. Such easements arise under strict conditions: where there has been a severance and the easement is absolutely necessary for practical access. Such an easement arises from the actual or implied intention of the parties. For an implied grant or reservation of a necessity easement, the following questions must be answered in the affirmative (see Adealon International). A)

Was there a dividison (or ‘severance’) of land, where a person owning both plots of land devised either dominant or servient land to another (Nickerson v Barraclough)??

B)

Was the easement absolute necessary, such that the land cannot be used without it (Union Lighterage)?  

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Mere convenience is not sufficient (Bolton v Chatterbuck) Alternative means of access are fatal to claims of absolute necessity- even if there alternatives are highly inconvenient. (McLernon v Conner; Barry v Hasseldine).

C)

Can such an easement be imputed or presumed from the parties’ intention?

Also, a necessity based argument will be rejected if the person landlocked themselves through their actions (e.g. Harris v Flower).

5) Implied Grant: By way on non-derogation from grant Following a grant of land which the parties intend to the grantee to use for certain purposes, the grantor must not use the retained land in a way that renders the land disposed unfair or materially less fit for its intended use (Browne v Flower; Ward v Kirkland). This is the expression of this doctrine ‘merely embodies in a legal maxim a rule of common honest’ (Hammer v Jumbil).

6) Implied Grant: By way of the Wheeldon v Burrows Rationale: Implied grants under the rule in Wheeldon v Burrows are based on the principle that the grantor is not permitted to derogate from their own grant (McGarth v Campbell). One cannot grant with one hand and derogate with the other hand (see Nelson v Walker; Wilcox v Richardson). Being based on this rationale, an easement cannot be implied in the face of a provision in the document which is inconsistent with such a grant (Wheeler v JJ Sanders). Element 1- Was there a grant of a part of land (i.e. a ‘severance’) (McGrath v Campbell)? Element 2- Was the right claimed ‘continuous’? In order to be continuous, the right claimed need not be constant but must be more than occasional (Borman v Griffith). Moreover, temporary non-use will not destroy this right (Costagliola v English). (i.e. when X used to live in behind block, X would pass through front block to access the road. Now, X has moved to front block and sold behind block to Z. Can Z use the same passageway that X used to use? Answer= yes if X’s use of the passageway was ‘continuous’). Wheeldon v Burrows limited the nature and use of easements to that exercised immediately before severance and included all easements necessary to enable the land transferred to be enjoyed and used at the time of conveyance that are continuous and apparent.

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