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Seminar notes for Easements
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Seminar prep notes for Easements seminar. Notes in red made during the seminar for added detail.
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Land Law Seminar 3- Easements (15/02/18)1) Test for Easements
Re Ellenborough Park- 4 characteristics for an Easement;
i. Dominant (gets) and servient (giver) tenements required (this is the land)
ii. Must accommodate (be useful) to the dominant tenement (connected to the land)
o Issues of proximity (Bailey v Stephens) and nature
iii. Dominant and servient owners must be different (diversity of
ownership/occupation)
iv. Must be capable of forming the subject of a grant (example of a ‘good view’)
o 6 factors from case law have to be satisfied for this (capable grantor and
grantee, capable of definition, no restriction on servient land, no expenditure
of money required (Rance v Elvin, Moncreiff v Jackson, Regency Villas
Title Ltd v Diamond resorts), no obligation of servient owner to
repair/maintain, not too excessive/extensive (Copeland v Greenhalf, Wright
v Macadam, London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd,
Mulvaney v Gough) including the ouster principle (Copland, Batchelor v
Marlow, London and Blenheim Estates Ltd, Moncreiff, Virdi v Chana Kettel
v Bloomfold) less certain in Hair v Gilman)
2) Validity of creation- just because something is capable doesn’t mean it is an easement
Express creation
i. Express reservation (dominant reserving for themselves)
o By deed (s52 LPA 1925, s1 LPA 1989 ) and registered (s27 LRA 2002)
ii. Express grant (dominant granting for the servient)
o Granting to another, such as rights of way
o S.62 LPA1925
Implied creation
i. Implied reservation
o Necessity (quite a strict test) (Titchmarsh v Royston Water Co, Manjang v
Drameh (gives criteria; common owner of two plots, access to public
highway only (if there is another ‘inconvenient’ route it wouldn’t meet
necessity) over the other plot, no specific grant or reservation of a right),
Nickerson v Barraclough) or Implied intention (Peckham v Ellison)
o In problem Q example- if had common intention for use as a farm and could
only access through her land; test of necessity would be used on the common
intention (when otherwise it may not have been a necessity)
ii. Implied grant
o Necessity, mutual (or implied) intention or the rule in Wheeldon v Burrows
(and s.62 LPA)
Presumed creation (prescription)- right capable of being an easement AND nature of
use requirements
i. Common law- from time immemorial (1189). This is rarely used
ii. Lost modern grant- creates a legal fiction from continuous enjoyment for 20 years
(presumption that is an easement which has been ‘lost’) (Dalton v Angus, Bakewell
Management Ltd v Brandwood)
iii. Statutory prescription- easements of light (use of light for 20 years with no
interruption) and ‘other easements’ (20 years uninterrupted unless used with stealth
or force/there was written consent/inability to grant easement, 40 years
uninterrupted unless same conditions except stealth/force)
3) Wheeldon v Burrows- sale of part tenement, quasi-easements pass as follows;
An implied grant- quasi-dominant part must be sold first
Quasi-easement must be in continuous and apparent use
Right must be necessary for the reasonable enjoyment of the land
4) S.62 LPA 1925 rule
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