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Law 1122 Easements Summary
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Comprehensive and detailed land law summary on easements. *Essential!! *For you!!
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1Easements
What is an easement?
- A right over someone else’s land
- E.g. right to walk across the land, right to park your car on the land
- Proprietary right – not a personal right
Is the right capable of being an easement?
Re Ellenborough Park test –
1. There must be a dominant (land that gains the benefit) and servient (land that grants
the benefit) tenement
- If the person claiming the right does not own the dominant tenement, it can only
be a licence/right of way, not an easement
2. The easement must accommodate the dominant tenement
- proximity: the two estates must be reasonably close to each other. There is no fixed
proximity requirement however.
Bailey v Stephens – cannot establish an easement between land in Northumberland
and Kent.
- nature of benefit claimed: must not be personal. Does the right make the use of the
dominant tenement more convenient? Must benefit the use of the land.
3. Dominant and servient owners must be different persons
Quasi easement = dominant and servient owned by the same people.
4. Must be capable of being granted by a deed
Must not restrict use of the servient land e.g. right to light (prevents construction on
servient land) or right to the support of buildings (prevents demolition of buildings).
Not require expenditure of money. – a positive obligation on the servient owner is
inconsistent with the nature of an easement – Rance v Elvin
Not too excessive/extensive – cannot limit servient owner’s use of their land too far.
Wright v Macadam – right to store coal in a coal shed = an easement. Owner of coal
shed still able to use it.
Exclusive use is inconsistent with an easement.
Copeland v Greenhalf Claim for an easement HELD = too excessive
(1952) to store vehicles on - the defendant is claiming the whole benefit of
adjoining land the land
- it was virtually a claim to possession which would
have excluded the owner.
Batchelor v Marlow Claim to exclusive right HELD = too excessive
(2001) to park cars between “such a restriction would…make his ownership of the
8:30am-6:30pm Mon- land illusory”
Fri.
Test: “reasonable use” – can servient owner still
reasonably use their land?
Hair v Gillman (2000) Claim right to mark one HELD = can be an easement.
car in a forecourt which Servient owner still has reasonable use of the remaining
, 2
could accommodate 4 3 spaces.
cars
Moncrieff v Jamieson Disapproved Batchelor ‘reasonable use’ test.
(2007) “substitute for it a test that asks whether the servient
owner retains possession and control”
Lord Scott – “how could it be that the law would
recognise an easement allowing the dominant owner to
park 5 cars or 6 or 7 or 8, but not 9?” – even if all 9
spaces were used, owner would still remain in possession
and in control of the land.
Virdi v Chana (2008) HELD – Batchelor ‘reasonable use’ test remains binding.
BUT court applied test leniently and commented
favourably on the possession/control test.
‘Reasonable use’ test: more restrictive. ST must still be able to use the land themselves.
Possession and Control test: allows more extensive easements. ST simply has to retain
ownership.
Creation of easements
Express creation
1. by express grant
- where the servient owner grants an easement to the dominant owner.
2. or by express reservation
- where A sells land to B and he wishes to retain an easement over B’s servient
land (dominant owner reserves an easement for himself)
Section 62 LPA 1925 – “conveyance of land shall be deemed to include…all…liberties,
privileges, easements, rights and advantages whatsoever”
- passes the benefit of existing easements which may have been left out of the deeds
(uncontroversial)
- creates new easements (controversial): can make a personal right by way of licence
into a legal easement, despite this not being the intention of the servient owner.
S62 requirements:
1. competent grantor: prior to conveyance, two plots must have been in common
ownership.
2. must be capable of forming an easement: satisfy Re Ellenborough Park criteria
3. there must be a conveyance (with legal documents)
4. must be no contrary intention – burden of proof on the seller. Vendor may put a clause in
the deed which says s62 cannot operate in order to revoke any rights he has granted over his
land upon sale.
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