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3 Cards in this Set
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1) what is an easement? |
Mackenzie and Phillips state that easements are 'easy to recognise but very difficult to define'. However, they are most commonly defined as a right attached to a piece of land which allows the owner of that land (dominant owner) to either: use the land of another person (the servient owner) in a particular manner, or to restrict its use by that person to a particular extent. Therefore, an easement can be both positive and negative and can be a legal interest as seen in s1 (2) (a) of the LPA 1925. They can also be equitable interests as seen in Walsh v Lonsdale |
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2) Re Ellenborough Park Test 1965 |
In order for an easement to pass this test, it must possess four characteristics. 1) is there a dominant and servient tenement 2) does the easement accommodate the tenement 3) are the dominant and servient tenements owned by different people 4) is the potential easement capable of forming the subject matter of a grant
The second characteristic, 'the easement must accommodate the dominant tenement' means that the claimant must show that it benefits that dominant tenement and is not an advantage to the dominant owner. The case of hill v tupper 1863 illustrates this. In this case, hill was granted permission to put his barges on a canal. However, a rival then also put barges on the canal and so hill sued. It was held that the right was not an easement as it did not accommodate the dominant tenement, it was a licence not an easement. In Bailey v Stephens 1862, the claimant lived in Kent and the land was in Northumberland and so it was held not to be an easement as it was too far away In the case of moody v Steggles 1879, a public house owner had a right to fix an advertisement onto an adjoining house. It was held that it was an easement as it benefitted the land as it advertised the land However, in Clapman v Edwards 1938, a general advertisement had been put onto an adjoining house and it was held that it was not an easement as it did not benefit the land
The fourth characteristic, 'is the potential easement capable of forming the subject matter of a grant' has its own characteristics: 1) is there a capable grantee/grantor 2) is there certainty of description (what type of easement is it) 3) is the right within the general nature of rights (is it capable of forming easements) |
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3) if the potential easement fails the E P test, then it is not an easement. However, if it passes then the courts will look to see if it has been acquired. |
There are, essentially, three ways in which an easement may be created: by an express grant/reservation, by an implied grant/reservation, and by a presumed grant (prescription).
The express grant of an easement is by deed (which is automatically legal) or by an equitable interest. Express reservation allows the seller to retain the benefits of any easements over the land that he sells S62 of the LPA 1925 automatically grants easements onto a conveyance, even if not expressly mentioned S62 of the LPA 1925 may be used in cases which involve the renewal of a lease. It operates where there is common ownership, as seen in the case of international tea stores v Hobbs 1903 where it was held that the conveyance to the plaintiff had an implied easement, entitling the p to cross the defendants land to get to the door. S62 also operates on a conveyance, which includes a lease, and it only operates provided the right is capable of existing as a grant, as seen in green v ascho horticulturalist 1996. In this case, a claim of a right to park a van failed because the claimant had always moved the van when asked to do so by the servient owner. Also, s62 requires the user at the date of conveyance, as seen in Payne v inwood, and the user must be continuous and apparent. According to the case of sovmots investments 1979, prior diversity of occupation was essential, certainty in the absence of a plain, visible user However, as seen in the case of platts v crouch 2003, there must not be any expressed contrary intention
The implied grant • the implied grant requires consideration of quasi easements and severance of common ownership • there are 4 types of implied grants: 1. Easements of necessity (land locked property) 2. Intended easements (land which was intended to be used in a certain way) - the case of Wong v Beaumont property trusts 1965 illustrates this. This case concerned the lease of basement which was intended to be used as restaurant. However, it needed a ventilation duct. The Claim for an easement for the passage of air was successful as it was necessary in order for the restaurant to open 4. Ancillary easements 5. Easements under wheeldon v burrows - wheeldon v burrows created the rule that upon the grant of a part of land, they must pass to the grantee all quasi easements over the retained land. The rule set three requirements for this: 1. It must be continuous and apparent 2. It must be necessary for the reasonable enjoyment of the land sold 3. It must have been used by the seller for the benefit of the part sold. - the rule operates in favour of the purchaser of the land sold - if all three requirements are satisfied, the legal easement will be implied in favour of the purchaser. |
