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Easements - Detailed
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Lecture 3: Easements [Live]21/10/2021:
What are easements & profits?
Prevent a land owner from doing something that they would otherwise be entitled to
do
o If a neighbour builds so close to the fence, and it would interfere coming to the
windows in my house might be able to claim a right of light and an injunction
to stop building happening.
o Negative easements and restrictive covenants are similar.
New easements:
When will the law recognise a new positive easement?
The lists of easements are never close – it changes in which the way we use land, new
ways of living of occupying land, the use of land evolves and there is a possibility a
new form of easements can be recognised.
Concentrate on – rights of recreations
o Regency villas v diamond resorts
A right for someone for a limited purpose on the land of their
neighbour, highly unable to recognise new negative easements
Easier to accommodate that regulation of neighbours through
using restrictive covenants
o Hunter v canary wharf ltd
A claim to right to seek tv reception – which
residents in area were interfered with the
development of canary wharf
Characteristics of easements:
How do we test whether a new type of use of land or neighbouring land be recognised as an
easement?
1. A dominant and servient tenement
2. Two pieces of land, must be in separate ownership/occupation of the dominant and
the servient land
a. Dominant land = the land to which the right is attached
b. Servient land = the land over which the right is exercised
3. Accommodation [i.e., benefit] of the dominant land
4. Acceptable subject matter of a grant
Key issues on content of easements:
1. What do the leading cases tell us about the following requirements?
a. Accommodation;
b. Subject matter of a grant
c. See re Ellenborough Park and Regency Villas
What is accommodation and the subject matter of a grant? These are
examined in detail in the two leading cases stated above.
2. What do we mean by ouster?
a. The Car Park cases:
i. London & Blenheim Estate v Ladbrooke Retail Parks
ii. Batchelor v Marlow
iii. Moncrieff v Jamieson
, Ouster = element of the last requirement, that easement must be the subject matter of
a grant, issues arise within the car park cases. Where someone has claimed to have
parked their car as an easement
3. The rule in Harris v Flower:
a. Extending the dominant land where the use of ancillary
i. Peacock v Custins
ii. Massey v Boulden
Re Ellenborough Park:
The issue = was the right to use a garden an easement attached to houses which
surrounded the park?
o Did the right accommodate the houses?
Talking about the right must benefit the dominant land, benefit in
some way, pin down what the benefit requirement comprises.
Lord Evershed:
The value of property may be increased, but must be increased
because the right relates to and enhances the normal enjoyment
of property
Question = primarily one of fact, depends largely on the nature
dominant, and the nature of the right granted
Nature of dominant land, and of right granted must be a clear
connection of the two, to demonstrate that enhance benefit.
Demonstrated clearly within this grant
Houses with the right to use a garden, do we think the right to
use a garden with enhance the use of a house as a residence?
Increase of value = interplay of value and benefit
o Could not run with the land as an easement as there was
no connection between the enjoyment of the land, and
the use of a house.
o Valuable right = independent, to the use of the house.
That is the point Lord E is making, right to use a garden
is it sufficiently connected with the house?
Use of a house undoubtly enhances and connected
with the normal enjoyment with the house that it
belongs – accommodation requirement was
satisfied here; the use of a garden enhances the
use of those houses as dwellings.
Note: Would not be any houses, only
those houses adjoining it or within close a
proximity.
o Was the right certain enough to be the subject matter of a grant?
o Certainty and Rights of Recreation:
Only one way you can use a garden – a garden is more than, a right to
wander within it.
Decided that the use of a garden attached to a house was sufficiently
certain to satisfy the last requirement of being the subject matter of a
grant.
More personal, than proprietary
Elements of subject matter of a grant is:
a. Certainty
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