Term
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Definition
| An easement is an interest which gives you the right to use/enjoy, or the right (indirectly) to restrict the use/enjoyment of land belonging to someone else. |
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Term
| What is a positive easement? |
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Definition
An easement which gives you the right to use/enjoy land belonging to someone else.
(e.g. right of way... you can then travel accross your neighbour's land)
(in ways this = indirect restriction on neighbour, because neighbour then can't build a house over the right of way, but we'll ignore that). |
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Term
| What is a negative easement? |
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Definition
An easement which gives you the right (indirectly) to restrict the use/enjoyment of land belonging to someone else.
(e.g. right of light... servient property then CAN'T build a block of flats) |
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Term
| When can an easement fall under the heading of being an estate contract? |
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Definition
| When the easement is a future easement, which is the subject of a contract. |
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Term
| What are the key requirements for an easement to be legal? |
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Definition
1) Must be created by deed (s52(1)
2) Must be for the length of a freehold or leasehold
3) Must be registered if on registered land |
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Term
| What is the difference between an easement and a quasi-easement? |
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Definition
| A quasi easement is a potential easement. |
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Term
| What is the difference between an easement and a 'profits a prendre'? |
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Definition
| Profits a prendre give you the right to TAKE SOMETHING FROM THE LAND. Easement's don't confer this right. Easements = right to benefit from the land. |
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Term
| What are the two ways in which an easement can arise? |
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Definition
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Term
| In what circumstances does a reservation of an easement happen? |
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Definition
| Where the landownder reserves a right for themselves over land which they have sold/leased. |
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Term
| In what circumstances does a grant of an easement happen? |
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Definition
| Landowner creates a right in favour of a new owner/tenant of part of land, over his retained land. |
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Term
| How do the courts deal with reservation easements? |
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Definition
| They construe them VERY strictly, as the courts take the approach that the landowner knows exactly what they wanted, and could get exactly what they wanted... therefore, they don't need broad interpretations of easements. |
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Term
| St Edmundsbury & Ipswich Diocesan Board of Finance v Clark [1975] |
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Definition
EASEMENTS WHICH ARISE BY RESERVATION ARE INTERPRETED STRICTLY BY THE COURTS
case in which church reserved a right of way over old rectory
easement didn't specify whether it was by foot, or by vehicle
HELD - The path only had a 4ft wide entrance, vehicle couldn't get through that... therefore, indicated that it was by foot only. If they wanted vehicle they should have expressed that it was by vehicle. |
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Term
| If an easement which arose by reservation = a footpath. If the owner of the easement wanted to drive their motorbike along it, do you think they would be allowed to? |
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Definition
| NO - FOOTpath, FOOT being the operative word. Reserve easements construed against the maker... |
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Term
| What is the leading case on necessary characteristics of an easement? |
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Definition
| Re Ellenborough Park [1956] |
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Term
| Re Ellenborough Park [1956] |
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Definition
SETS OUT THE NECESSARY CHARACTERISTICS OF AN EASEMENT.
1) There must be a dominant and servient tenement
2) The serviant tenement must accomodate the dominant tenement
3) There must be a diversity of ownership of the dominant and servient tenements
4) The rights must lie in grant. |
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Term
| What is the test for easements, as set out in Re Ellenborough Park [1956] |
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Definition
1) There must be a dominant and servient tenement
2) The serviant tenement must accomodate the dominant tenement
3) There must be a diversity of ownership of the dominant and servient tenements
4) The rights must lie in grant. |
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Term
| What does 'there must be a dominant and servient tenemant' mean? |
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Definition
| It means that there must be two identifiable pieces of land... one which benefits from the exercise of the right (dominant), and one which is burdened by it's existence (servient) |
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Term
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Definition
THE RIGHT (FROM THE EASEMENT) MUST ACCOMMODATE THE DOMINANT TENEMENT
(ACCOMODATE = CONFER SOME FORM OF DIRECT BENEFICIAL IMPACT)
C ran boat hire company from leased premises on bank of a canal
C was granted 'sole and exclusive right to put or use boats on the said canal, and let them for pleasure purposes only'
D began putting his own boats on the canal
C claimed that D had interfered with with hi easement
HELD - C did not have an easement. The right must connect to the use and enjoyment of the land and be of benefit to any user of the land.
Clearly, the right that the C had ONLY connected to him, not the land |
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Term
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Definition
| A DOMINANT AND SERVIENT TENEMENT MUST EXIST |
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Term
| In assessing whether the right benefits the dominant tenement, what is it useful to consider? |
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Definition
1) Would the right be of benefit to any owner of the dominant land? (if no, probably = personal right not connected to the land)
2) Does the right positively affect the value of the dominant tenement? |
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Term
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Definition
INTERESTING CASE TO COMPARE WITH HILL V TUPPER
IF THE RIGHT ACCOMODATES THE DOMINANT TENEMENT, IT CAN BE AN EASEMENT
C owner a pub
Pub was down a narrow alleyway
for the last 40 years, a sign had hung on the D's property which was on the highstreet (sign directed to the pub)
D took the sign down because it creaked
C claimed right to hang = easement
HELD - right to hang = an easement. Although the right benefitted the pub, not the land per se, the business was very closely connected to the land, and any owner of the land would likely run a pub from the premises. Therefore, right connected to the land. The right benefitted the land (because the land would always be used as a pub, or some business like premises). |
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Term
| Why is it useful to compare Moody v Steggles and Hill v Tupper? |
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Definition
IT IS CLEAR FROM THESE CASES THAT A RIGHT WHICH FACILITATES A COMMERCIAL USE OF THE LAND IS NOT PRECLUDED FROM BEING AN EASEMENT. THE QUESTION, IT OWULD SEEM, IS WHETHER THE BUSINESS IS A NECESSARY INCIDENT OF THE NORMAL USE OF THE LAND, RATHER THAN A COMPLETELY UNCONNECTED BUSINESS.
In Hill, the court held that the right connected to the person, and did not benefit the land. Whereas in Moody, the court held that the right benefitted the land. |
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Term
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Definition
IN ORDER FOR THE SERVIENT TENEMENT TO ACCOMMODATE THE DOMINANT TENEMENT, IT IS NECESSARY TO SHOW THAT THE TENEMENTS ARE SUFFICIENTLY PROXIMATE TO ONE ANOTHER.
(they need not be conjoining, but they must be sufficiently proximate) |
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Term
| What does it mean 'there must be diversity of ownership'? |
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Definition
| The dominant and servient tenements must be owned by different people. If the same person owned both, the right would = quasi-easement (easement which is a potential easement). It is possible for easements to exist where the fee simple of both the dominant and servient tenements are owned by one person, and yet diversity of ownership exists by the fee simple owner granting a lease to a tenant over one of the tenements. |
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Term
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Definition
| THERE MUST BE DIVERSITY OF TITLE BETWEEN OWNERS/OCCUPIERS OF THE DOMINANT AND SERVIENT TENEMENTS. |
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Term
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Definition
| EASEMENT MUST BE FOR THE BENEFIT OF THE LAND, NOT THE GRANTEE. THE EASEMENT MUST BE OF NO USE TO THE GRANTEE AFTER THEY HAVE LEFT THE LAND. |
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Term
| What does it mean that the right must 'lie in grant'? |
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Definition
| The right must be capable of forming the subject matter of a deed. |
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Term
| What are the different things you must consider in determining whether the right can 'lie in grant'? |
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Definition
1) Capable grantor and grantee?
2) Right = capable of reasonably exact description
3) Right must be judicially recognised or analogous to a recognised easesment |
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Term
| In determining whether you have a capable grantor and grantee, what must you consider? |
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Definition
1) Suis juris
2) Estate in land? (equitable/legal)
3) Legal capacity |
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Term
| william Aldred's Case [1610] |
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Definition
| RIGHT TO A SCENIC VIEW = NOT EXACT ENOUGH TO = LIE IN GRANT = NOT AN EASEMENT |
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Term
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Definition
| RIGHT TO PRIVACY = NOT REASONABLY EXACT ENOUGH TO = LIE IN GRANT = NO EASEMENT |
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Term
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Definition
| RIGHT TO FLOW OF LIGHT FROM AN UNDEFINED CHANNEL = NOT REASONABLY EXACT ENOUGH TO LIE IN GRANT = NO EASEMENT |
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Term
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Definition
| COURT = HESITENT TO RECOGNISE NEW NEGATIVE EASEMENTS |
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Term
| Regis Property v Redman [1956] |
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Definition
| CLAIM TO A SUPPLY OF HOT WATER = NOT AN EASEMENT, BECAUSE SERVIENT OWNER = PUT TO EXPENSE |
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Term
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Definition
CAME UP WITH A CREATIVE WAY OF OVERCOMING THE RULE THAT SERVIENT OWNER CAN'T BE PUT TO ANY ADDITIONAL EXPENDITURE... ANY ADDITIONAL EXPENDITURE BY SERVIENT OWNER, THE DOMINANT OWNER WILL OWE BACK TO THEM ON QUASI CONTRACT
the court accepted that an easement to the flow of water through pipes could exist. The defendant’s claim that he had to pay for the water, which was flowing through the pipes, was rejected by the court. It claimed that the easement was merely to the passage of water and that the defendant’s obligation was to ensure that he did not interfere with that supply. In response to the argument that the defendant would incur expense via water bills, the court responded that the holder of the easement should pay for his share of the water. |
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Term
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Definition
| SERVIENT OWNER IS NOT REQUIRED TO CARRY OUT ANY REPAIRS TO MAKE EASEMENT USEABLE... HOWEVER, SERVIENT OWNER MUST ALLOW DOMINANT OWNER ACCESS SO THAT HE CAN CARRY OUT THE REPAIRS |
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Term
| Green v Ashco Horticultural [1966] |
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Definition
THE RIGHT MUST BE EXERCISABLE AS OF RIGHT. IF THE RIGHT IS ONLY EXERCISED SO FAR AS THE SERVIENT OWNER PERMITS = NOT AN EASEMENT...
C parked his car on Ds land
Whenever D asked, C would move his car out of the way
HELD - C moving his car = acknowledgement that he does not have the right... therefore = no easement |
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Term
| London & Blenheim Estates [1992] |
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Definition
| EXCLUSIVE POSESSION - AS LONG AS THE RIGHT DOESN'T EXCLUDE THE SERVIENT OWNER FROM ANY REASONABLE USE OF HIS LAND, IT CAN BE AN EASEMENT. |
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Term
| Batchelor v Marlow [2003] |
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Definition
IF SERVIENT OWNER IS EXCLUDED FROM ANY REASONABLE USE OF THE LAND, RIGHT CANNOT = EASEMENT. EVEN IF EXCLUSION IS NOT 24/7... IT IS A MATTER OF DEGREE.
Cars parked between 9am - 6pm = deprived the servient owner of dominant part of the benefit of his land. |
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Term
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Definition
IF THE SERVIENT OWNER STILL HAS REASONABLE USE OF HIS LAND = CAN BE AN EASEMENT
RIGHT TO PARK IN ONE OF FOUR PARKING SPACES = OK... = NO INTERFERENCE WITH SERVIENT OWNER'S REASONABLE USE OF HIS LAND |
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Term
| Jackson v Mulvaney [2003] |
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Definition
| RIGHT TO USE THE GARDEN = OK, AS THE SERVIENT OWNER COULD STILL USE THE GARDEN AS WELL. |
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Term
| Grigsby v Melville [1972] |
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Definition
| RIGHT TO STORE ITEMS IN A CELLAR = NOT AN EASEMENT, AS SERVIENT OWNER IS THEN EXCLUDED FROM USING THE LAND (BECAUSE DOMINANT OWNER'S ITEMS ARE THERE). |
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Term
| Moncrieff v Jameson [2007] (SCOTTISH CASE) |
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Definition
CRITICISED THE BLENHEIM 'REASONABLE USE/EXCLUSION' RULE. INSTEAD... IF THE SERVIENT OWNER MAINTAINS POSESSION AND CONTROL OF THE LAND, EASEMENT = OK.
HOWEVER, NOTE, THIS CASE IS SCOTTISH. |
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