Notes Easements PDF

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Summary of topic Easements . Includes framework of main rules, case summaries, academic opinions, legislation....

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Notes: Easements (Content) 

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Easement = right to do something on the servient land, or (in some cases) to prevent something from being done on the servient land o Fit within old category of incorporeal hereditament Four requirements in Re Ellenborough Park [1956]: 1) There must be a dominant and servient tenements 2) The easement must accommodate the dominant tenement 3) The dominant and servient owners must be different persons 4) The right must be capable of forming the subject matter of a grant

Dominant and servient tenements  Must be land adversely affected by the right o King v David Allen (Billposting) o CA in London & Blenheim Estates v Ladbroke [1994] called this trite law o Sturely (1980) has questioned the propriety of this rule  Could be argued that economically valuable rights could be created as easements in gross Easement must accommodate the dominant tenement  Dominant tenement must be benefited by easement: affect land directly or the manner in which it is used o Must be the land that benefits rather than the individual owner o Merely increasing value of plot is insufficient (Re Ellenborough Park)  Accommodation = connection between the right and the normal enjoyment of the property (Polo Woods)  Business use: o No objection that easement relates to business of dominant owner i.e. Moody v Steggles o Distinguish Moody and Hill v Tupper because in later case the easement was the business rather than just benefiting it o Hill v Tupper two crucial features: (a) whole point of right was set up boating business rather than to benefit existing business; (b) right purported to be exclusive o King v David Allen (Billposting) [1916]: affixing posters/adverts to a wall was not an easement  Gardens: o Re Ellenborough Park: recognised right to park as constituting in effect the garden of the house – not “extraneous to, and independent of, the use of a house as a house”  But: relied on idea that most houses have gardens; do most houses have swimming pools? Hill v Tupper [1863]  X made contractual promise to C that C would have sole right to put boats on the canal and hire them out; C was landlord of Inn neighbouring canal who started hiring out pleasure boats

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Held: no sole and exclusive right to put boats on canal o Right did not accommodate the dominant tenement Pollock CB: “it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee” Martin B: “To admit the right would lead to the creation of an infinite variety of interests in land, and an indefinite increase of possible estates”

Moody v Steggles [1879]  Pub owner claimed right to affix advert to D’s house; advert had been affixed for 40 years – when property had been owned by same person  Held: easement did accommodate dominant land, despite also benefitting the business situated on the dominant land: it would continue to benefit successors in title to the dominant land  Fry J: “the house can only be used by an occupant, and that the occupant only uses the house for the business which he pursues, and therefore in some manner (direct or indirect) an easement is more or less connected with the mode in which the occupant of the house uses it”; must be physical connection between tenements King v David Allen (Billposting) Ltd [1916]  By ‘licence’ D gave C permission to affix posters and adverts to flank of walls of cinema; D assigned all interest to trustees and made agreement with them without reference to agreement with C  Held: no interest in land; merely personal right: personal right because it did not relate to any land in the possession of C  Lord Buckmaster LC: on construction: “it is not a letting or tenancy or anything of the kind, but a licence”; “nothing but a person obligation” Liverpool CC v Irwin [1977]  D tenants withheld rent in protest at conditions in tower block; D counterclaimed duties to repair and maintain common parts of building  Held: as far as common parts were concerned there must be implied an easement to use them; obligations to be read into the contract on the part of the council was such as the nature of the contract itself implicitly required; not implied on basis of reasonableness; nature of contract required that maintenance of means of access was placed on landlord  Lord Wilberforce: “… a mere grant of an easement does not carry with it any obligation on the part of the servient owner to maintain the subject matter”; case of essential means of access to building nature of contract and circumstances require obligation to be placed on landlord  Lord Cross: “general principle that the law does not impose on a servient owner any liability to keep the servient property in repair for the benefit of the owner of an easement”; “but it would be contrary to common sense to press the general principle so far”, should imply obligation to take reasonable care to keep common parts in good repair Dominant and servient owner must be different persons  It is not fatal that person holds fee simple in both plots, but cannot have easement over his own land

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Law Com (2011): would require different registered titles to plots

Right must be capable of being the subject matter of a grant  Right must be capable of clear definition o No rule that right to amusement or recreation was not capable of being an easement (Re Ellenborough Park) No positive obligation  No positive obligation on the servient owner i.e. Rance v Elvin [1985] (obligation not to interfere with supply of water enforceable, but could not have obligation to provide water) o Moncrieff v Jamieson [2007]: Lord Scott argued that use of swimming pool involved too many positive duties to be acceptable  Now see Regency Villas Title v Diamond Resorts (Europe) [2015] o Anomalous exception of easement to fence (Crow v Wood [1971])  Can be justified: need fence to be maintained by one land owner, would be odd if each were obliged to build their own fences Crow v Wood [1971]  Farm was sold together with right to stray 40 sheep on moor; C ceased to keep up walls and fences of her farm; in consequence D’s sheep trespassed on C’s land  Held: right to have neighbour keep up fences was a right known to the law  Edmund-Davies LJ: “a right to compel another to maintain fences is in the nature of an easement capable of arising from grant or implied grant and can pass under section 62” Egerton v Harding [1975]  C and D both had grazing rights over common land; C did not exercise rights but D did; D’s cattle strayed into C’s garden and caused damage  Held: duty to fence against the common could arise by custom, once immemorial usage of fencing was proved  Scarman LJ: “True, its positive character (hence Gale's epithet "spurious") creates difficulties: but it is a private right and obligation between neighbouring landowners” No new negative easements  Easements which simply inhibit the servient owner from acting in a certain way i.e. right to light: negative easements o Right to do something on the servient land rather than merely restrain something being done on the servient land  Courts are reluctant to recognise new negative easements (Phipps v Pears [1965]) o Megarry (1964): doubts the propriety of distinction between positive and negative easements – making such a distinction can often be difficult  Future negative easements should be seen as covenants o But: cannot be implied or created by prescription Phipps v Pears [1965]  Two properties had walls next to each other; one of the properties was pulled down by LA leaving the wall of the other exposed; the wall has never been rendered or plastered so rain got in

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Held: no easement known to law as protection from weather Lord Denning MR: “the law has never been very chary of creating any new negative easements”; “if such an easement were to be permitted, it would unduly restrict your neighbour in his enjoyment of his own land”

No claim to possession  Claim to exclusive or joint occupation is inconsistent with easement  Copeland v Greenhalf [1952]: practically to a claim for the whole beneficial user of the strip o No objection that servient owner may temporarily be ousted from part of the land whilst easement is exercised (Ward v Kirkland [1967]) o Wright v Macadam [1949] (not argued in case): CA viewed right to use coal shed as an easement – but: servient owner seems to be excluded  London & Blenheim Estates v Ladbroke Retail [1992]: question of degree: left “servient owner without any reasonable use of his land, whether for parking or anything else” (per Judge Paul Baker QC) o Followed in Batchelor v Marlow [2003] by CA: focused on land over which the right was asserted rather than the entire area owned by the servient owner  Moncrieff Lord Scott obiter: reject any rule that sole use of land was fatal to easement – problems could only arise when dominant owner was claiming exclusive possession and control – rejected Batchelor and London & Blenheim Estates o Lord Neuberger: agreed with Lord Scott’s analysis but did not give firm conclusion; Lord Mance: did not consider issue  Batchelor still binding: Polo Woods v Shelton-Agar [2009] o Law Com (2011): proposes abolition of ‘any reasonable use test’ Copeland v Greenhalf [1952]  D, wheelright, had used strip of land owned by C, which gave access to orchard, to park cars as part of business for 50 years  Held: right claimed too extensive to constitute an easement; amounted practically to a claim to the whole beneficial user of that part of the strip of land  Upjohn J: “no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject-matter of an easement”; should bring claim for possession by reason of adverse possession London & Blenheim Estates v Ladbroke Parks [1992]  Transfer of title with easements and other rights listed including a right to park cars on any available space in land set aside as a car park  Held: dominant and servient tenements were not held by different person at time; right to park cars can exist as easement provided that, in relation to area over which it was granted, it is not such that it would leave the servient owner without any reasonable use of the land  Judge Paul Baker QC: “An easement cannot exist as an incorporeal hereditament unless and until there are both a dominant and a servient tenement in separate ownership”; “the essential question is one of degree”

Batchelor v Marlow [2003]  D in connection with their business of servicing cars at garage premises parked cars on a strip of land which C acquired; D attempted to have caution entered on the register o Claimed prescriptive right to park 6 cars on his land during working hours, MondayFriday for 9 hours a day  Held: right to park cars which would deprive the servient owner of any reasonable use of his land was not capable of subsisting as an easement; exclusive right to park six cars for 9½ hours every day of the working week would leave C without reasonable use of his land either for parking or for any other purpose o Tuckey LJ approved London & Blenheim Estates v Ladbroke Parks  Tuckey LJ: “such a restriction would, I think, make his ownership of the land illusory” Moncrieff v Jamieson [2007]  Gate in fence was only access to C’s property; predecessor in title of D gave a servitude right of access from public road 150 yards away; C used vehicles to gain access to property and parked them on servient tenement without objection  Held: in the law of Scotland a servitude right to park was capable of being constituted as ancillary to a servitude right of vehicular access  Lord Scott: “right must be such that a reasonable use thereof by the owner of the dominant land would not be inconsistent with the beneficial ownership of the servient land by the servient owner” i.e. would doubt whether right to use swimming pool could be an easement  “servient land in relation to a servitude or easement is surely the land over which the servitude or easement is enjoyed, not the totality of the surrounding land of which the servient owner happens to be the owner”; “test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land”  Lord Neuberger: ““I am not satisfied that a right is prevented from being a servitude or an easement simply because the right granted would involve the servient owner being effectively excluded from the property”; considerable force in Lord Scott but: (a) necessary to assess the degree of ouster of the servient owner that will defeat claim, (b) point was obiter and not fully argued, (c) analysis might lead to occupational licences becoming proprietary Polo Woods Foundation v Shelton-Agar [2009]  ‘The Triangle’ was proved to belong to D; C claimed a profit à prendre to graze 10 horses on the land  Held: wrong to apply single test of real benefit for accommodation; two matters which should have been kept distinct, namely (i) accommodation and (ii) the needs of the estate; accommodation depends on a connection between the right and the normal enjoyment of the dominant tenement  Warren J: “the right must be connected with the normal enjoyment of the property”; “Although Moncrieff v Jamieson casts considerable doubt on the correctness of the decision in Batchelor v Marlow , Mr Batstone is right, I think, to say that the latter case is binding on me as a matter of law particularly in a case of prescription rather than express grant”

Recreational rights Re Ellenborough Park [1956]  Tenants in common sold land around park for building; conveyances gave right to use park in return for a fee  Held: necessary connection between its enjoyment and the premises to which that enjoyment was expressed to belong, right of enjoyment of the park accommodated and served the premises entitled to the right; right appurtenant to houses to use a garden for normal domestic purposes o Merely increasing the value of the land is not sufficient i.e. a right to enter Lord’s Cricket Ground would make the land more valuable but would not benefit the land qua land  Evershed MR: “it is not sufficient to show that the right increased the value of the property conveyed, unless it is also shown that it was connected with the normal enjoyment of that property”; “we can see no difference in principle between Ellenborough Park and a garden in the ordinary signification of that word” Regency Villas Title v Diamond Resorts (Europe) [2015] Judge Purle QC High Court – now on appeal 

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D owned land containing leisure facilities; Cs owned timeshares adjoining this; properties were previously both owned by G, G transferred land to Cs on registration entries were made including rights to use the leisure facilities Held: right of recreation, e.g. the use of a swimming pool, could take effect as an easement provided: (a) the intention to grant an easement, as opposed to a merely personal right, on proper construction in light of the circumstances, and (b) the right claim was not: (i) too wide and vague, (ii) did not amount to a right of joint occupation, and (iii) did not deprive the servient owner of legal possession o On facts rights took effect as easements o Does not apply dictum of Lord Scott in Moncrieff on rights to use swimming pools Evaluation: o No reason to see as purely personal - unlike Moncrieff, this case did not concern neighbours in the purely domestic context, but a grant made by a developer for a number of timeshare owners

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Sold villas as timeshares with rights to use gardens, swimming pool and mansion house for recreation Held: in the modern world an easement should not be invalid as a ‘mere recreation or amusement’ because the form of physical exercise was a game or a sport o (i) right must not be too wide or vague o (ii) easement cannot impose positive obligation  Dominant owner remains free to maintain the facilities but the servient owner is under no obligation to do so

(iii) not valid if it requires the dominant owner to exercise a right to joint occupation or deprives the servient owner of legal possession Sir Geoffrey Vos: “The essence of an easement is to give the dominant tenement a benefit or a utility as such. Thus, an easement properly so called will improve the general utility of the dominant tenement. It may benefit the trade carried on upon the dominant tenement or the utility of living there” o

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Meggary (1964): reasoning in Phipps v Pear would invalidate range of easements to support which are widely recognised: “Only distinction suggested was based on the unsatisfactory distinction between negative and positive easements”; positive easements can involve negative burdens i.e. right of way prevents blocking and requires access o “It is thus not easy to see the ground for saying that although rights of support can exist, rights of protection from the weather cannot. The two rights have much in common” (Megarry 1964) Sturely (1960): law should recognise easements in gross; “the law is singling out easements for relatively unique treatment, as virtually every other right in land can be held in gross unless it would be meaningless to do so”; no clear case law on why no easements in gross o Rationale for rule (1) ‘surcharge argument’: likely to burden the servient tenement with excessive use because it is not attached to the needs of a dominant tenement; but: would still be limited by terms of the grant - “many easements are self-limiting… [they] cannot be used excessively because of the very nature of the right” o (2) ‘clogs on title argument’: unjustified encumbrance on the title of the servient tenement: but: “rights in gross over land creating incumbrances on title, however, exist almost universally” i.e. mortgages; can have valuable easements without dominant tenement o “Were easements in gross permitted it would be a simple matter to require their registration” (Sturley 1960) Luther (1996): move towards analysis in terms of ‘substantial interference’ with owner’s rights: “does not matter if a claimed easement excludes the owner, provided that there is some clear limit to what the claimant can do on the land”; Copeland ignores Wright v Macadam o Copeland v Greenhalf actually fits into line of cases that state that easement must be sufficiently certain: “it amounted, in the judge's view, to joint user for any purpose, or at any rate for far too wide a range of purposes” o “claim for joint user (possession, because the activities are unlimited, but not to the exclusion of the owner) would fail because it was not sufficiently certain” (Luther 1996); “to look at the positive characteristics of a claimed right must in many cases be easier than to assess its negative impact on someone else's rights” Dawson and Dunn (1998): “the classification of negative easement is a historical accident” o “it is said that a negative easement is not capable of existing at law on the ground that such a right would be too uncertain” – but: (1) conceptual difficulties in saying that a sentence is sufficiently certain for some purposes (covenant, contract) but not others (grant of easement); (2) led to the safeguarding of such a ‘right’ through the doctrine of non-derogation from grant

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(a) “one person's freedom in the occupation and use of property is, of course, another's restriction”; (b) easements are property rights so can be fitted into this definition of freedom of property which should be protected; (c) sole purpose of all servitudes is too restrict owner’s freedom; (d) positive easements i.e. right of way can be just as much of an interference Assimilate negative easement and restrictive covenant, see as covenants

Notes: Easements (Creation) 

Three ways to create easements: 1) Expressly  (i) Express grant in deed – legal  (ii) Express grant in contract - equitable  Express grant or reservation must be registered (LRA 2002 s27 (2) (d)) 2) I...