Easements: London & Blenheim Estates v Ladbroke Retail Parks- An
easement cannot exist if unattached to a dominant
Definition:
piece of land
An easement is a right benefitting on piece of land (the 2. The right must accommodate the dominant tenement
dominant tenement) that is enjoyed over another The right must make the land a better and more convenient
landowner’s land (the servient tenement) property. Instead of giving a personal benefit to the current
An easement may be positive, in that it allows the owner owner, the enjoyment of the right should be connected to
of the dominant land to do something on the servient the normal use of the dominant land and should be as a
land, such as use a road. An easement could also be benefit to all future owners
negative in that it limits what the owner of the servient It is a question of fact
land. Negative easements are less common It must benefit:
Proprietary rights – the land itself is benefitted and
The use of the land and/or
burdened, the benefit passes to new owner with a
The value of the land and/or
transfer of the dominant tenement, the burden passes
The mode of occupation of the land
to the new owner with the transfer of the servient
Re Ellenborough Park - enhancement to the value of land
tenement
Positive easements- allows owner of dominant may be evidence of accommodation but is not by itself
tenement to receive something from the servient conclusive
tenement- prevents servient tenement from doing Hill v Tupper- A right that gives purely a commercial
something advantage is not seen as accommodating the dominant
tenement
Legal easements: Moody v Steggles- A right giving a commercial advantage but
S 1(2) LPA 1925 – an easement is capable of being a legal also connected to the normal use and enjoyment of the land
interest will be found to be as accommodating the dominant
An easement is capable of being legal if it is attached to tenement
a dominant tenement that is a legal estate (freehold or Regency Villas Title Ltd v Diamond Resorts- A right to
leasehold) recreational use can accommodate the dominant land where
Must be created by statute, by deed or registered shown to be connected with that land, conferring utility and
disposition, or by prescription benefit to it
An expressly granted legal easement must be registered Bailey v Stephens- To accommodate, the dominant and
on the title of the servient land – S25 and 27 LRA 2002; servient tenements must be sufficiently proximate to one
the benefit of the easement must be noted on the title another
of the dominant tenement – Schedule 2 Para 7 LRA 2002 There must be diversity of ownership and/or occupation of
Impliedly granted easements: can take effect as an the dominant and servient tenements
overriding interest under Schedules 1 and 3 LRA 2002 Roe v Siddons- Cannot enjoy an easement against your own
land
Equitable easements: Wheeldon v Burrows- Such enjoyment would be a quasi-
An equitable easement may arise if the requirements for element which potentially can become an easement if
the creation of a legal easement have not been met, eg, diversity of ownership/occupation arises
if it has not been created by deed or registered A right that confers a purely recreational or amusement use
disposition, or if it has not been registered on the title of on the dominant tenement will not be accepted as an
the servient land etc. easement but if there are clear and defined circumstances
An equitable easement must be contained in a written they can amount to an easement
contract signed by both parties – S2 LP (MP) Act 1989 London Blenheim Estates v Ladbroke Retail Parks-
Or it could be generated by proprietary estoppel. Eg, in Accommodating the dominant tenement included an
Ives v High a verbal promise, relied on by the promise to easement to park and walk across land with a shopping
his detriment, generated an equitable easement. trolley
Platt v Crouch- The right to moor boats at a riverbank was
How to determine whether an easement exists: capable of being an easement for the benefit of a hotel on
Is the alleged right capable of amounting to an easement? the dominant land
If so, has an easement actually been created?
3. The right must lie in grant
As an easement is a right capable of existing at law, it must be
Re Ellenborough Park- Four conditions that a right must satisfy to
capable of being granted by deed
become an easement:
This requires:
1. There must be a dominant and servient tenement
There must be a capable grantor- someone legally competent
The dominant tenement benefits from the right being
to create an easement (e.g. not a minor)
exercised and the servient tenement is burdened by the right
There must be a capable grantee- as above but someone in
being exercised
whose favour an easement may be legally granted
Both must be defined at the time of acquisition of the
easement
, The easement must be definite- must be sufficiently certain Batchelor v Marlow- Exclusive right to park 6 cars for 9 ½
and unambiguous- so that the servient owner knows the hours each week day was held not be an easement as the
extent of their obligations individual could not have reasonable use of the land for
Must be two separate legal personalities with legal parking or any other purposes
capacity Moncrieff v Jamieson- Test: the relevant question is not
A right that is capable of reasonably exact whether the alleged easement permits the servient owner a
definition: reasonable use of their land, but whether the alleged
Harris v De Pinna- Rights of light, water, air, easement leaves the servient owner in possession and
passage should be through defined channels control of their land. Batchelor v Marlow was not overruled
William Aldred’s Case- Rights that require Law is unclear on which test is correct, the issue is
subjective interpretation like scenic view may be whether the servient owner retains reasonable use
deemed to uncertain (Blenheim Estates; Batchelor v Marlow)
Chaffe v Kingsley- Rights normally capable of being whether the servient owner retains possession and control
easements may fail owing to ambiguities within the (Moncrieff v Jamieson)
documentation Law Commission stated that the ouster principle is not useful
Dyce v Lady James Hay - New easements can arise and favoured the Moncrieff v Jamieson approach
as the list of recognised easements is not closed
Phipps v Pears- Courts are reluctant to recognise Creation of easements:
new negative easements Easements can be created expressly, by implication, or
Hunter v Carnary Wharf- Courts base declining to by prescription
recognise new negative easements on public policy
Moncrieff v Jamieson- Stated that it was unlikely Easements can be granted where the servient tenement
that the right to use a swimming pool could qualify owner grants an easement over his/her own land to the
as an easement because it would require the owner of the dominant tenement
servient owner to keep it filled and maintained Easements can be reserved where the dominant
Churston Golf Club v Haddock- A fencing easement tenement owner sells or leases land and retains some
even though it imposed a positive burden on the right for him/herself over the land he/she has sold or
servient tenement via spending money was held to leased
be valid as it has been long recognised in the law
Expressly created easements:
Ouster principle: Legal easements created by statute:
It cannot impose undue restrictions on the servient land A statute may determine that a body such as a local
AKA ouster principle: no undue restrictions on the servient authority, corporation or private individual will be
land entitled to the benefit of an easement, is usually for
Law of easements will not recognise an easement that gives some public purpose
the dominant tenement owner too large a measure of
occupation or control of the servient tenement. This has Legal easement created by deed or registered disposition:
mainly been centred on rights of storage and car parking Most legal easements are created by deed (unregistered
land) or registered disposition (registered land)- an
express grant of an easement can occur even if there is
Rights of storage: no actual mention of it in the deed or registered
Wright v Macadam- As Wright only used a small part of the disposition
coal shed, Macadam was not deprived of a substantial use of Section 62 LPA 1925:
his property, so it was capable of being an easement. A conveyance of land shall be deemed to include to
Grigsby v Melville- The court found in favour of Grigsby, convey with the land all liberties, privileges, easements,
there was no easement for Melville to use the cellar as his rights and advantages related to the land
use would deprive Grigsby of substantial use of the cellar This meant the benefit of an existing easement passes to
himself the new owner of the dominant land with the
conveyance even if there is no mention of it in the
Car parking cases: conveyance unless the conveyance expresses a contrary
Copeland v Greenhalf- It was held not to be an easement express a contrary intention (i.e. that it should not pass)
because the court held his use of the strip of land amounted Section 62 can also operate to convert precarious rights
to virtually a claim to possession of the servient tenement into easements, i.e. rights such as license to use land
London & Blenheim Estates Ltd v Ladbroke Retain Parks that were previously enjoyed by someone can be
-“The essential question is one of degree. If the right granted converted into full easements when the land is sold or
in relation to the area over which it is to be exercisable is leased to them
such that it would leave the servient owner without any International Tea Stores v Hobbs- What had previously
reasonable use of his land whether for parking or anything been a licence to use the roadway had now become a
else, it could not be an easement, though it might be some full legal easement
larger or differing grant.”
