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easement lecture notes
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Lecture notes of 11 pages for the course Land Law at BU (easement notes)
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LX2082 LAND LAWEASEMENTS
1. The nature of easements
Certain limited rights that one landowner may enjoy over the land of a near neighbour
The land that has the benefit of the easement is the dominant tenement
The land that has the burden of the easement is servient tenement
Proprietary rights – the land itself is benefitted and burdened: the benefit passes to
new owner with a transfer of the dominant tenement; the burden passes to the new
owner with the transfer of the servient tenement
Positive easements: allows owner of dominant tenement to go onto the servient land
to make use of that land
Negative easements: a right of the dominant tenement to receive something from the
servient tenement (eg, light; air) – prevents servient tenement from doing something
2. Legal easements
S 1(2) LPA 1925 – an easement is capable of being a legal interest
An easement is capable of being legal if it is attached to a dominant tenement that is a
legal estate (freehold or leasehold)
Must be created by statute, by deed or registered disposition, or by prescription
An expressly granted legal easement must be registered on the title of the servient
land – S25 and 27 LRA 2002; the benefit of the easement must be noted on the title of
the dominant tenement – Schedule 2 Para 7 LRA 2002
Impliedly granted easements: can take effect as an overriding interest under Schedules
1 and 3 LRA 2002
3. Equitable easements
An equitable easement may arise if the requirements for the creation of a legal
easement have not been met, eg, if it has not been created by deed or registered
disposition, or if it has not been registered on the title of the servient land etc.
An equitable easement must be contained in a written contract signed by both parties
– S2 LP (MP) Act 1989
Or it could be generated by proprietary estoppel. Eg, in Ives v High (1967) a verbal
promise, relied on by the promisee to his detriment, generated an equitable easement.
4. How do we determine whether an easement exists?
There are 2 main issues that need to be considered in the law of easements:
(a) Is an alleged right capable of amounting to an easement?
(b) If so, has an easement actually been created?
We will first consider whether an alleged right is capable of amounting to an
easement by looking at the essential characteristics of an easement.
5. The Essential Characteristics of an Easement
1
, There are 4 essential characteristics of a valid easement, which derive from the
judgment of Evershed MR in the case of Re Ellenborough Park [1956] Ch 1.
Facts of Re Ellenborough Park:
Ellenborough Park was a development of houses surrounding a park. Each house was
sold together with the right to full enjoyment of the park. During the Second World
War the park was requisitioned and a dispute arose as to who was entitled to
compensation. It was held that the house owners’ right to use the park was an
easement, because it satisfied the legal characteristics of an easement, so they were
entitled to share in the compensation.
The 4 characteristics:
(a) There must be a dominant tenement (DT) and a servient tenement (ST)
This means that there must be land that is benefitted (DT) and land that is
burdened (ST). Both tenements must be identifiable at the time the easement is
created.
(b) The separation of the dominant and servient tenements
This means that each tenement must have different owners, ie, one cannot have an
easement over one’s own land. If the 2 properties come into the ownership of the
same person (eg, the owner of the DT buys the ST) the easement will be
extinguished. A tenant could have an easement over the land of the landlord and
vice versa.
(c) The easement must accommodate the dominant tenement
This means that the easement must benefit the dominant tenement, and not merely
the person who currently owns or occupies it. For this to occur, the easement must
attach to the land. How does an easement attach to the land? It must benefit:
the use of the land, and/or
the value of the land, and/or
the mode of occupation of the land.
In deciding this issue, each case is decided on its own facts. However, the courts have
set guidelines:
(i) The ST must be sufficiently proximate (close) to the DT in order to enable
the DT to benefit from the easement. The 2 tenements do not need to share a
common boundary or be right next to each other, but the further away from
each other they are, the less likely it is to be regarded as an easement.
(ii) The easement must not confer a purely personal advantage on the owner of
the dominant tenement.
Case: Hill v Tupper (1863): a canal company leased land beside the canal to
Mr Hill and granted him the exclusive right to put or use boats on the canal.
Mr Tupper owned a pub next to the canal. When he also rented out boats to be
used on the canal, Mr Hill objected. The court held that Mr Hill’s exclusive
right to put boats on the canal was not an easement but a personal advantage
2
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