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Easement Subject Guide Notes
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Easement Subject Guide Notes1. Profits a prendre: (a prendre (French) = ‘to take’ (to be taken))
2. Legal easement: an easement which was created in a manner recognised at law, for a
duration equivalent to a fee simple absolute in possession or a term of years absolute
(s.1(2)(a) LPA 1925)
3. Equitable easement: any other valid easement, including all those created informally;
this includes any easement held for a period other than either a fee simple absolute in
possession or a term of years.
4. Although easements, due to its proprietary nature can potentially burden land, the
courts should not take a closed-door approach towards recognising new easements. In
keeping up with changing times, the Court should recognise new category of
easements as in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018]
UKSC 57.
This case is essentially an appeal that offers an opportunity for this court to
consider, for the first time, the extent to which the right to the free use of
sporting and recreational facilities provided in a country club environment
may be conferred upon the owners and occupiers of an adjacent timeshare
complex by the use of freehold easements.
Court recognised it and stated the sentiment expressed above.
5. Facts of Re Ellenborough Park: house owners around a park were granted the right to
use it as a ‘leisure garden’, but during the Second World War it was taken over by the
government. If the house owners had been deprived of a legal right, then they were
entitled to compensation under a statute. On the facts, the only possible legal right
was an easement. Eventually, the house owners succeeded in convincing the Court of
Appeal that the right to use the park was an easement. Four factors were held to be
relevant in determining whether an easement exists.
6. Vocab - An easement must be attached (‘appurtenant’) to a dominant tenement.
7. London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31 :
The Leicestershire Coop owned land in and around one of their stores in
Leicestershire to London & Blenheim Estates; the sale included the right to park cars
on the remaining adjacent land which the Coop still owned. Part of the agreement
stated that if London & Blenheim Estates wanted to purchase more land, they were to
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, contact Coop before they make the purchase, so that they are able to get similar
parking rights for their new land. At some point, The Coop sold its remaining land to
Ladbroke. After that sale went through, London & Blenheim Estates purchased more
land and wished to obtain parking rights for it.
The court held that London & Blenheim Estates could not claim for new
parking rights for the new land they had purchased. This was because the
agreement had not properly identified the dominant tenement.
8. In addition to the requirements in Re Ellenborough, the subject guide lays down
additional points to consider for a valid easement. This could be the structure taken in
a problem question (or even in essays which require a discussion of the criteria).
The right must be within the general nature of rights capable of existing as
easements – courts would be open to new positive easements (allowing the
dominant to do something) with changing times. But will be closed to
expanding negative easements (preventing the servient from doing
something). Hunter v Canary Wharf.
The exercise of the right must not require any action on the part of the servient
owner.
The easement must be exercisable as of right – if it is exercisable by
permission then cannot. Green v Ashco Horticulturist Ltd [1966] 1 WLR 889:
a purported grant of a right of way for such periods as the servient owner may
permit one to use it would not confer any legal right at all.
The easement must not confer a right to exclusive possession of the servient
land.
Car parking cases: The ‘right’ to park has caused particular problems,
since in some cases it has been considered to be too extensive and too
much interference with the servient owner’s use of their own land.
(a) Batchelor v Marlow: Batchelor owned a car parking area,
which was the servient land to an easement granting Marlow
(the defendant) the right to park up to 6 cars on the land
between 9:30 and 18:00 on weekdays. This was held to amount
to exclusive possession.
(b) Miller v Emcer Products: neighbour using toilet was exclusive
possession but it wasn’t unreasonable because it was for such a
short time.
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