L1 L2 L3 L4 Easements and Profits a prendre PDF

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Semester 2 Land Law lecture notes on easements and profits. Lecturer Ellen Stokes. Notes are in great detail and are clearly structured. Includes images to help provide a clearer understanding and detailed facts and ratios of cases to understand how the law has been applied....

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L1 L2 L3 L4 LAND Lecture Notes Easements and Profits a prendre -

3rd Party Proprietary Rights

“Land is a social resource, in that it cannot be utilised without the co-operation of neighbouring landowners” Law Commission (No. 186, 2008) para 4. 182 Land is a limited resource with a steady/ increasing demand, creating pressure on land in UK. This increases the value of land. Rules to allow more people use and benefit the land e.g. easements, LH. Easements: o o o

>65% of registered FH titles are subject to 1 or more easements 24% of registered LH titles are subject to an easement Common examples = right of way (e.g. over a drive), right of support (e.g. in row of terrace houses)

Basics of easements and profits a prendre: o o

o o o

Falls under Law of ‘servitudes’ = attaching a burden to the land, for the benefit of another party Why? - Efficient use of the land – allows as many people as possible to be able to use land. - Enables landowners to plan land use and enhance the enjoyment of the land. Types of incorporeal hereditaments (intangible rights) Has proprietary significance – important because it is capable of binding future P’s. Therefore, law imposes restrictions/ strict criteria.

Easements in general: 1. Right to derive some limited advantage from someone else’s land.

Positive in nature Right to use someone else’s land in a particular way

Negative in nature Right to prevent someone from using Exercisablehis overland in a Servient Tenant (ST) particular way

Benefit attached to

2. An easement MUST be annexed – the benefit must attach to a bit of land. Dominant Tenant (DT) Land which benefits/ enjoys. Land which serves the easement.

L1 L2 L3 L4 LAND Lecture Notes 3. An easement is a non-possessory type of right o Individual type of right – not everybody has the right o Right is temporary o Not exerting actual occupation o Distinguishable from:  Profits a prendre  Licences – personal rights  Restrictive covenants  Natural rights  Public rights – e.g. to access motorway Profits a prendre in general: 1. Entitles holder to take something natural from someone else’s land: o Part of the ST land (e.g. soil, turf) o Something which grows naturally on ST (e.g. grass, crops, timber) o Wild animals, fowl or fish found on the ST land or in ST waters. Common examples = felling and removing standing timber, grazing or pasture.

2. Subject matter must be something which is capable of being owned. o Water is not capable of being owned – Alfred F Beckett v. Lyons [1967] o Subject matter limits to natural produce (fructus naturales) on someone else’s land o Can be, but need not be, exclusive – ie. can give to multiple parties. 3. May exist in gross

(Difference between profit and easement – No such requirement for annexation in Gross)

Easements and Profits compared:

L1 L2 L3 L4 LAND Lecture Notes Hypothetical scenario: Bunsen (DT) wants to claim right of way over Beaker’s (ST) land. Is he able to claim an easement?

KEY QUESTIONS: 1. Does the right claimed satisfy the essential characteristics of an easement? 2. Has an easement been acquired? 3. If so, is it legal or equitable? 4. Is it binding upon future purchasers?

These questions should also be posed if Bunsen were claiming to have a profit over Beaker’s land: 1. 2. 3. 4.

Does the right claimed satisfy the essential characteristics of a profit? Has a profit been acquired? If so, is it legal or equitable? Is it binding upon future purchasers?

1. Defining ‘characteristics: o

Re Ellenborough Park [1956]: (Danckwerts J p. 140) ‘The essential qualities of an easement are (1) There must be a DT and ST (2) An easement must accommodate the DT, that is, be connected with its enjoyment and for its benefit – ie. must benefit the land, can’t be personal enjoyment to an individual. (3) The DT and ST owners or occupiers must be different persons (4) The right claimed must be capable of forming the subject-matter of a grant’

(1) There must be a DT and a ST:

L1 L2 L3 L4 LAND Lecture Notes o o o

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An easement cannot exist in gross – has to be annexed to the land (Ackroyd v. Smith [1850]) Must be able to identify: DT and ST At date of when easement is created/ granted:  Grantor must own interest in ST  Grantee must own interest in DT No true rule that DT and ST are directly next to each other… but they must be close enough to confer an obvious benefit on DT – rules of proximity:  Bailey v. Stephens [1862]: ‘There is really no more connection here, than if the owner of an estate in Northumberland were to grant a right of way to the owner of another estate in Kent’  Courts don’t say precisely the proximity of closeness Does the benefit attach to the DT land itself, or to the DT estate? – Wall v. Collins [2007] (F) Easement granted through a lease deed, so DT was LH land. LH came to an end. It was absorbed into FH. Did easement cease to exist because LH had ceased to exist? (R) CA – easement could attach to land itself rather than an estate in it. Easement did not come to an end.

(2) Easement must ‘accommodate’ the DT = benefit has to fix to the land, rather than the individual o o o

Confer utility and benefit on DT C needs to show that ‘it exists for the reasonable and comfortable enjoyment of the DT’ – Moncrieff v. Jamieson [2007] ‘There can, in short, be no easement merely to have fun’ Gray & Gray, Elements of Land Law (5th ed, OUP 2008)

o

o

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Cannot have an easement which confers a purely personal or commercial advantage:  Hill v. Tupper [1863] (F) Canal owner leased to P land on canal bank. C purported to grant P ‘sole and exclusive’ right to put please boats on canal. Another party, X, puts rival boats on canal, interfering with P’s trade. P claims to have an exclusive proprietary right (easement) over the canal. (R) P’s claim rejected. P had a mere licence. Unenforceable against X, only enforceable against licensor (canal owner). Did not constitute an easement – specific to P’s business, so was not a benefit to the land. NO. Does an element of commercial benefit disqualify a right as an easement?  Where a building has a historical use and will always be this nature e.g. a farmhouse – therefore a benefit attaches to the land.  Moody v. Steggles [1879] (F) P claimed a right to fix signboard advertising pub to D’s adjoining house. Sign up for at least 40-50 years. Is right to fix sign to advertise business an easement? (R) Held an easement had been acquired. In the nature of how the land would be used by anybody – it will always be a pub, so the benefit attached to the land. What sort of ‘benefit’ and ‘connection’ is required in domestic settings?  To be determined using a Qualitative assessment (non-numerical measures): - Right to use a garden enhances, and is connected with, the normal enjoyment of the house to which it belongs - Right to park the car directly relates to the enjoyment of the benefitted land (Menala [1998])

L1 L2 L3 L4 LAND Lecture Notes -

Enhancement of land value is relevant but not conclusive evidence of ‘accommodation’ (Re Ellenborough Park)

(3) DT and ST must be owned/ occupied by different persons: o o

Diversity of ownership – ie. different freehold owners Diversity of occupation – e.g. landlord and tenant

(4) Right claimed must be capable of forming subject matter of grant: o o

Must ‘lie in grant’ – ie. looks like it could have been granted by deed, but not necessarily. Sub-set of 5 criteria: a) Must be a capable grantor and a capable grantee b) Right must be sufficiently definite c) Right must be within general nature of rights traditionally recognised as easements d) Right must not impose positive burden on ST owner e) Right must not deprive ST owner of all beneficial proprietorship

a) Must be a capable grantor and a capable grantee: o

Capable grantor - Nemo dat quod non habet – can’t give more than you already have - Grantor must be entitled to proprietary interest in the ST - Exception – in the case of easements by estoppel (DOESN’T NEED A CAPABLE GRANTOR):  Estoppel is a constructive equity and ensures fairness  Arises where Party A plans to buy a plot of land, before purchasing land, A grants B an easement in that plot = not a

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o

capable grantor because A doesn’t have the right to grant easement as they don’t yet own it  Imagine B, in the reasonable belief that they have an easement, behaves in such a way to their detriment.  A, after purchasing land, then tries to stop B from exercising that easement.  In that situation, the courts would then estop A from denying B their rights.  The minute A buys land, it crystallises the easement made by estoppel. Capable grantee – must be of age - No valid easement where:  Grantee is legally incompetent to receive grant (e.g. company without power to acquire easements)  Fluctuating body of persons (e.g. ‘the current inhabitants of Roath’) – has to be a defined population.

b) Right must be sufficiently definite:

c) Right must be within general nature of rights traditionally recognised as easements: o o o o

The list of positive easements is not closed But courts generally reluctant to accept new kinds of rights as easements (e.g. Hill v. Tupper) because it places burden on some individuals. Particularly if right is very different from easements already recognised List of negative easements are absolutely closed – only a small number which courts accept

Wide range of positive easements: -

gives someone the right to do something

To use right of way (Borman v. Griffith) To use neighbour’s kitchen (Heywood v. Mallalieu) To advertise business (Moody v. Steggles) To park car (Moncrieff v. Jamieson) To generate excessive noise (FAILED) (Sturges v. Bridgman)

4 categories of

negative easements: gives someone the right to prevent someone from doing something

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Right to support of buildings from land (or other buildings) Right to receive light through defined channels Right to receive air through defined channel Right to receive flow of water through artificial stream

d) Right must not impose positive burden on ST owner: o o o

Easement doesn’t require up keep or for ST to spend money Positive burden – e.g. for owner to cut bushes No duty on ST to maintain or repair right of way

e) Right must not deprive ST owner of all beneficial proprietorship: o o o

o o

Easement cannot exclude ST from using the land, no exclusive possession What amounts to too much possession? = A question of fact and degree For example, cases involving confined spaces – ‘storage cases’: - Wight v. Macadam [1949] – tenant held to have acquired easement to store coal  Question is how much and how long?  What does it allow DT to do to someone else’s land?  If filled to the brim for 24 hours a day = excludes ST from possession - Copeland v. Greenhalf [1952] – right to keep cars on narrow strip of land did not constitute as an easement because most of the land was occupied - Batchelor v. Marlow [2003] – right to park 6 cars for 9 hours a day was not an easement because it left no ‘reasonable use’ for ST owner = too extensive.  Lord Scott argues – in reality, although ST could not use land in the same moment, it doesn’t prevent ST being in ultimate control of the land.  Every easement will bar some ordinary use of the ST  How can law recognise an easement allowing DT to park 5, 6, 7 or 8 cars… but not 9? – where is the threshold between reasonable and unreasonableness? The ‘ouster’ principle Criticisms of Lord Scott’s test: Law Commission rejected his approach  The question should be “What can the DT owner do?” rather than, “What can the ST owner not do?” The operation of these principles can be illustrated as follows: 1. A allows B to park her car on any space in his car park. B’s right would be clear and limited enough in its scope to comprise an easement. 2. A allows B to park her car on a designated space in his car park, and only on that space. B’s right has been clearly defined, and it is limited in scope: all B can do on the space is park her car. Again, this right could take effect as an easement. 3. A allows B to park her car in A’s garage, and A provides B with a key so that she can secure the garage. B is not entitled to do anything in A’s garage except to park her car. This right could also take effect as an easement, as it is sufficiently well-defined and limited in its scope: it is a right to park and no more. Depending on the circumstances,

L1 L2 L3 L4 LAND Lecture Notes

however, the arrangement may exclusive possession to B for a take effect as a lease rather

it will

involve the grant of term at a rent, in which case than an easement.

2. Has an easement been acquired? Modes of acquisition – whether easement is

determines legal or equitable

EXPRESS

IMPLIED

PRESCRIPTION

! Discount the modes that DON’T apply, and explain WHY ! :

EXPRESS s.65(1) LPA 1925

Grant

OR

Reservations

by Estoppel

Deed is best form of writing

Statute

by

Reserving yourself an easement over the land you sell.

Words

Words

Contracts are less robust

DEED or CONTRACT s.52 LPA 1925 s.1 LP(MP)A 1989

s.1(2) LP(MP)A 1989 Specifically enforceable

Walsh v. Lonsdale effect

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Im

IMPLIED o o

No writing, contract or deed 4 rules: Explain why they don’t apply first! Usually discount the top.

L1 L2 L3 L4 LAND Lecture Notes

The rule in Wheeldon v. Burrows: Quasi-easements: -

Common owner (X) Sub-division of land X used land she now retains for benefit of land transferred to Y

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Before transfer, we could not say that X had an ‘easement’ in strict sense (no DT or ST, only 1 person)

Requirements: 1. Right must be ‘continuous and apparent’ - ie ‘seen on inspection’ – Ward v Kirkland [1967] 2. Right must be necessary to reasonable enjoyment of property granted

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Will the right contribute to the enjoyment of property for purpose for which it was transferred?

3. Quasi-easement used by common owner at time of grant for benefit of part granted

s.62 LPA 1925: o o o o o o

On transfer of land, you transfer any rights with it. Contains ‘general words’ which imply into conveyance of legal estate What were parties already doing in their everyday lives? Prior diversity of ownership or occupation between dominant and servient lands. Applies automatically Can operate in 2 different ways:  Ensures continuing entitlement to easement or profit already enjoyed  Can also have a transformative effect (e.g. license  easement)

Example 1 (continuing easement already enjoyed) – s.62 LPA 1925:

s.62 LPA 1925 – Requirements: 1. Right must have been exercised over land retained by grantor. 2. Right must have been appurtenant to (or ‘enjoyed with’) the quasi-DT

Example 2 (Transformative effect) – International Tea Stores v. Hobbs [1903]:

3. Right must have been enjoyed at time of conveyance 4. Conveyance must be of legal estate 5. Contrary intention must not have been expressed in conveyance (s.62(4))

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Easements of necessity: o o

That right must be absolutely essential for the use of the DT land Courts will only recognise them where the land is ‘absolutely inaccessible or useless’ without the easement – Union Lighterage v. London Graving Dock [1902]

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Tend to only be implied where the DT land would otherwise be landlocked (Clark v. Cogge [1607]) or support between terraced or semi-detached houses (Williams v. Usherwood [1983])

Requirements: 1. Necessity 2. Necessity must exist at time of grant of DT land Easements of common intention: o o o

Courts will readily imply an easement to give effect to the common intentions of the parties. Did the parties together intend the C to be able to exert that right? Wong v. Beaumont [1965] (F) Landlord leased out series of cellars to tenant – were to be used for the purpose of a restaurant. Regulatory rules that said the restaurant needed ventilation. Landlord refused to affix ventilation duct to ST land. (R) Court took lease agreement to be evidence of their common intention that this property had to be used in a particular way. If the parties intended to use property as a restaurant, they must have intended for a ventilation duct to be attached from DT to ST.

Requirements: 1. Parties must, at the time of grant, have shared intention (express in contract /deed or implied from conduct of parties) that land demised or retained should be used for particular purpose – some sort of agreement 2. Easement must be necessary to give effect to that intended use

PRESCRIPTION o o o

Combines fiction and fact Arises in circumstances where C has been doing something which could have been an easement for a long time 3 methods:

STEP 1: Have general principles of prescription been fulfilled? 1. User in fee simple in purported DT land 2. Continuous user 3. User as of right - Must be doing so in a completely open manner, as if you are entitled to use it - Onus on C to prove that they are using the right without force, secrecy or permission - Can’t be doing it in the dead of night when DT would never have the chance of seeing you - Can’t be hiding the fact you’re using the right - Can’t be doing it forcefully or with your permission (otherwise would have a licence) - Nec vi, nec clam, nec precario

L1 L2 L3 L4 LAND Lecture Notes 4. Acquiescence by ST owner - Means you could do something about it, but you’re not doing anything about it. - Not given permission/ consent - Passive assent – they could have stopped you, but they chose not to. - A) Knowledge of acts done - B) Power to stop them from doing it - C) But you have chosen not to stop me from doing it. Methods of prescriptive acquisition: At common law o o o o

Oldest method – right is presumed to have lawful origin if used from ‘time immemorial’ (1189) You need to show you have been using the right for 20 years No requirement that easement should be exercised at the time it is being claimed However, extremely vulnerable – proof that the right can’t have been used since 1189 defeats the claim.

By statute o o

Prescription Act 1832 Two forms: 1. Long user - Have been using easement for 40 years/ profit for 60 years (s.2/1) right up until the time you bring a claim or action (s.4) - If successful in bringing claim, then you have a defeasible right (s.2) 2. Short user - Have been using easement for 20 years/ profit for 30 years (s.2/1) right up until the time you bring a claim or action (s.4) - Claim cannot be defeated by proof that user started after 1189 – like common law

By doctrine of ‘lost modern grant’ o o o o

20-year period of use The law will simply assume that this right was granted to you by way of deed, and you lost the deed. Don’t have to be using easement right up until the point you bring a claim – unlike common law and statute. The law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made.

3. If so, is it legal or e...