Land Law: Understanding Easements

Easements

• Easement is a right to use someone else's land for the benefit of another piece of land.
• Examples include rights of way, laying drains, storage and using facilities like a loo.
• Before claiming a valid easement, certain requirements must be met.
• First, a right capable of being an easement must be established.
• Second, proof that the easement was created in a recognized way is needed.
• Third, if the land has been sold to a third party, it must be determined whether the right is binding.

Essence of an Easement

• Re Ellenborough Park (1956) set out criteria for an easement.
• There must be a dominant and servient tenement.
• The tenements must not be owned and occupied by the same person.
• The right must accommodate or benefit the dominant tenement.
• The right must be capable of forming the subject matter of a grant.

Dominant and Servient Tenement Details

• A tenement is simply the old name for a piece of land in which the owner has a legal estate.
• The dominant tenement is the land with the benefit of the right claimed.
• The servient tenement is the one that the right is over.
• According to Roe v Siddons (1888), one cannot have an easement over one's own land.

Accommodation and Benefit to Dominant Tenement

• The right claimed must benefit the dominant land, not just the owner personally.
• Laying drains across land clearly benefits land by preventing flooding.
• Playing tennis on another’s land only benefits the owner, not the land itself.
• In Hill v Tupper (1863), the canal owner granted Mr. Hill the exclusive right to put pleasure boats on the canal
• The courts determined that the right only gave him a personal business advantage and was not binding on third parties.

Adequate Proximity

• The tenements must also be sufficiently close.
• According to Bailey v Stephens (1862), a right of way over land in Kent cannot benefit land in Northumbria.
• The dominant and servient lands do not necessarily have to be next to each other.

Subject Matter of a Grant

• Easements must be capable of being granted expressly in a deed.
• A capable grantor and grantee (of sound mind and full age (18)) must exist.
• The right must be sufficiently definite; one must define a footpath's location or a drain's placement.
• View rights like defining privacy is impossible.
• The right must be analogous to existing easements and not totally exclude the servient owner.

Ouster Principle

• Rights must not prevent the servient owner from using their land.
• In Copeland v Greenhalf (1952), leaving vehicles on a strip of land amounted to claiming the whole beneficial use.
• A test was created and concluded with whether the servient owner retained possession and control of the land.
• If the conditions for an easement's essence are not met, the right is a license.
• Licences can be bare (no consideration) or contractual (consideration given).

Creation of an Easement

• Section 1(2) LPA 1925 defines which interests in land are capable of being legal.
• Section 1(2)(a) applies to easements in both unregistered and registered lands.
• For an easement to be 'legal,' it must be granted for an indefinite time period or a term of years.
• Even if the easement is capable of being legal, it must then satisfy section 52(1) LPA 1925 and use a deed.
• Satisfy Re Ellenborough Park and Section 1(2)(a) LPA 1925 to create a legal easement.
• There are different ways an easement can be created.
• Express Grants in a deed, and In a written contract.
• Implied grants of necessity.
• Under S62 LPA 1925.
• or By prescription.
• Express Reservation. and Implied reservation
• An express grant is an agreement made knowingly and deliberately in a deed.
• According to Section 1 LPA (Miscellaneous Provisions) 1989, a deed must be in writing, clear in intent, signed by the maker with an attesting witness, and delivered.
• An easement can be created in a written contract that does not satisfy the deed, creating an equitable easement.
• Section 2 LPA (Miscellaneous Provisions) 1989 states a valid contract must be in writing, signed by both parties and state all terms.
• Equity views the contract as done, and specific performance is possible.

Implied Grant of Necessity

• Courts will imply an easement of necessity if one would have difficulty getting to a land without trespassing.
• The easement must be implied into the conveyance with a deed to get a grant of necessity.
• Defining necessity, Titchmarsh v Royston Water Co Ltd (1899) said it had to be classified an 'absolutely necessary'.
• Per Nickerson v Barraclough (1981), you must show an easement when it was actually implied between the parties that hadn't been spelt out in the deed of sale.

Implied Grant: Mutual Intention

• Courts give effect to what the parties intended when land was sold.
• It must be implied into the conveyance from the deed of sale.
• This rectifies a problem for when things seem obvious that no one mentions.
• In Davies v Bramwell (2007), servicing cars required a ramp, and courts implied an easement for access over the vendor’s retained land.

Grants Per Wheeldon vs Burrows

• In the example provided of the layout of Mr Theirlands estate, it was obvious that the track would be used to reach YourLand, which is a quasi easement.
• This means that when Mr Theirland owned the whole plot, he used a right that would be capable of being an easement if the part of the land benefited by the right (the dominant land) when sold off.
• The right must be continuous and apparent (regular basis and visible).
• Necessary to the reasonable enjoyment of the land sold.
• The right had to be in use both previously and at the time of the sale for the benefit of the part of the land sold.

Working Out

• If The sale of the dominant land is by deed (governed by S1 LPA 1989), it will be implied into the deed in use both previously and at the time of the sale for the benefit of the part of the land sold
• The sale can also be done by contract (governed by S2 LPA 1989) and it will be implied into the contract and be an equitable easement.

Implied Grant per S62

• This applies to when the owner of the estate is the same but tenants are different.
• the ‘conveyance' is defined as a sale or lease of land.
• Section 62 includes fences, buildings, hedges, and existing easements
• It also includes: 'rights, privileges and advantages' pass with the conveyance – this means a right, privilege (permission) or advantage will be converted into an easement
• If S62 is not expressly excluded, and the right that is being claimed is capable of being an easement per Re Ellenborough Park then:
• if landowners are by 1 person and have separate occupation, and the servient tenement uses a deed to sell or transfer or renew a lease, then that will be transferred
• It is used to convert any right, privilege, or advantage enjoyed by the occupier of the dominant tenement before the sale or a lease into a legal easement
• For example, Mr. Theirland converts a Verbal Permission to Use the land and he rents it to you for 4 years then you call it Yourland Then with that verbal permission, turns into a legal Easement
• S62 states on conveying a land, it includes all privileges that were enjoyed all the time at sale. Giving that advantage to enjoyment gives it legal status
• There is Criticism as it is so harsh on Mr Thierland and can with draw it easily

Prescription

• The basis for the claim to have used a certain right for a good amount of time
• Ballpark of 20 years.
• You need to give a statutory declaration for the rights you are claiming (even from previous owners).
• The theoretical is it was formally granted to you or your predecessors with a deed in the past.
• There is 3 musts
• The right must be used without force
• The right must be claimed without secrecy
• The right must be used without permission

3 ways to claim prescription:

• Under the common law when it can show that the right has been used since 3 September 1189. Lost modern grant when the right you been used for the past 20 years but it constantly the court Hollins vs verney 1884 He'll be uses into preceding 20 years did not amount sufficient to be

• Prescription Act 1832 there had to be at least 20 years of consistent use and that should be held till when you claim the use

Express reservation

• This is what you obtain when a Right is obtained because a landowner sells off rights to it, while keeping some rights
• Then that Right should be created terms in conveyance of what the actual right is and when/ how it can effect sale of the deed. This makes the claim of right a legal right
• This doesn't often happen because they feel the balance of rights would lay with the seller

What is protection of the easement and unregistered land look like

• First one must establish what it is and if legal then it binds the world
• If it is not able to be a land charge then it is governed to not bind the purchase of a legal interest
• Check and see if that person interest is in Land Register

Remedies for Unlawful interference

• Abatement is where the easment user takes law into this own land
• Suing In Nuisance is when you sue the infringer but that means damages/injunction may come in
• Reforming Laws for easements and there is looking to reform easements but there is certain dates to look at to account for the laws in order

Content of Easements

• Ellen Borough Park 1956 where EllenBough is a well known Park with 2 tenants Facts they sold rights to People Houses around then War Office occupied in for WW2 So the point of matter was to establish it was right vs not that is needed Judgement
• In order of the properties People enjoy an easement over the park
• Judge determined for criteria

Regency Villas 2017 Matter

• Appentees owned a Mansian house while diamond sort ltd had time share
• Appeletntees said their rights where just Personal
• Trail judge told it could happen
• Judges said this is a reasonable reference from part to other grants and it must give the dominate land as benefit and should not just recreation and amusement

London Estate vs lad broke retail

Facts

• Liesecter and Coop has rights to park cars while co op retained part
• the agreement inclusion was it should tell corporate advance
• They wish to server notice to park

Judgement

• The right was not an identified at aqueduct so it could not be identified
• The need must be before there can be a ground

Hills vs Tupper 1863

Facts where

• A canal owner list on the canal for his pleasure boots
• To Tupper hired rival bots against hill and the canal
• Mr Hills states their rights is interferable

Polo Woods 2010 Case

Facts was disputing the tri age to get to the cottage Then the judge rejected for it as didn't benifit it because It depended to the right to benifit and its use So it's up to the courts to decide on a necessary to to see the rights Then courts say it isn'ta real benefit it for how will use it on a normal usage.

Reservation and Grant (Statutes)

• S62/ S65 are the general laws for conveyancing

General Clause Conveyance shall be deemed including, and shall be operated in virtue, to build with the land erection Fixtures and water courses of water or anything part there of Convariance of manner shall be deemed including but the 31st day of December for any reservation for illegal estate shall not be in order to a grantor by so doing those

Implied vs Reservation

• Donovavan Vs Rana 2014 Concers land in common intent and all purposes would be allowed to that Land
• And must show that the building would not be built

Poulback Vs Woodman 1915 Land use Fact

Poulblech Colliery sublett Glamoshire authorizing mining would be done Mr Woodman lease on other part about the 2 said all rights authorized Mr Woodman started eating dust factory And his action for the news to start for coal mines that would have a license

Nick V Barraclough

Facts that is not easily you would looked on what is actually happening It has been excluded when did

Wang vs Beromount 1965

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