Notes for Land Law module on the topic of Easements (Learning Cycle 6) at the University of Bristol. The notes were consolidated in a comprehensive way for revision by a law student who has scored an average of high 2.1 to 1st across all academic years.
Land LC6: Easements
Learning objectives:
1. Servitude / property right in the land of another
2. Characteristics required for a right to be capable of being an easement
3. Possible modes of acquisition of easements
4. How one uses / loses an easement
5. Durability of easements: land registration, potential loss, intensity of use
Definition: Easements = Interests which exist over one person’s land for the benefit of another person’s land
A proprietary right over somebody else’s land, either
To enter land to do something; OR
To stop owner of the land form doing something on her/his own land
‘Proprietary’ in nature = enforceable against third party (incl. successor in title)
Parties to be involved:
Servient tenement (ST) = land with burden (Whiteacre)
Dominant tenement (DT) = land enjoying benefit (Blackacre)
Types of easements:
Positive easement = right to enter onto sb else’s land to exercise right (e.g. right of way)
Negative easement = right to prevent sb from doing something on their own land (e.g. right to light)
Note:
Easement can be legal interests in land – S.1(2)(a) LPA 1925
If formalities NOT met (either 1creation / 2registration formalities) Equitable easement
o Implied easement (arises through implicational prescription) = legal, NOT equitable
o Just bc something is NOT expressly created doesn’t mean that it is automatically equitable
Not all rights exercisable over someone one’s land amount to easements Requirements to be met
Can be created in various manners
To be distinguished from easement:
Profits à prendre: right to take something from land (e.g. Piscary)
Licences: personal right to come onto land
Miscellaneous:
o ‘Natural rights’, local customary rights, statutory rights
o Public rights of way, planning law
Covenants (not relevant to course)
PQ Approach
Identify borderline/complex issues & dedicate attention to those + Use headings/subheadings
Characteristics: Is the right capable of being an easement? ALL criteria
Acquisition: Has it been acquired as an easement? Express/Implication?
o For implication: ONLY address modes of implication that have a chance of success No need to mention
all if NOT relevant to PQ (as long as 1 is satisfied implication is finished)
Formalities: Legal/equitable?
Binding effect: What is the effect of easement on third parties? (general effects & registration issues)
Might it have been lost?
Characteristics of easement – Re Ellenborough Park [1956]
1. Dominant & servient tenement
Right must affect 2 plots of land / tenements – ‘it is annexed to land, and that no person can possess an easement
otherwise than in respect of land and in amplification of his enjoyment of some estate or interest in a piece of land.’
– Alfred F. Beckett v Lyons [1967]
, Dominant tenement & servient tenement MUST be sufficiently defined
o ST NOT identified – Woodman v Pwllbach Colliery Co. Ltd [1914] 111 LT 169, affirmed [1915] AC 634
o DT NOT specified – London & Blenheim Estates v Ladbroke Retail Parks [1914] 1 WLR 31
Note: Easement CANNOT exist ‘in gross’ (= not attached to land) – London and Blenheim Estates [1994] 1 WLR 31
o If a person claiming to have right to cross another person’s land DOESN’T own land himself, this is licence/public
right of way NOT easement Easement exists for benefit of the land Person claiming right must own land
o Criticism: Should be possible to possess easement w/o having to be a DT – M.F. Sturley (1980) 96 LQR 557
o BUT to abandon the need for DT = rise of new rights to burden land – A. Lawson
o There should be no change in existing law – Law Commission (2008) and (2011)
2. The dominant & servient owners / occupiers are different people
2 tenements must be owned by different people
If someone owns both DT & ST, they don’t need an easement Rights are exercised ‘as of right’ – Roe v Siddons
[1888] 22 QBD
Law Commission, Making Land Work (2011) questions the need for this requirement & has recommended its
abolition
3. The right ‘accommodates’ the dominant tenement
Easement must be ‘connected to the normal enjoyment of the [dominant] property’ – Ellenborough Park
Benefit the land, rather than a particular owner/occupier (Whoever on that land should be able to enjoy)
More than simple economic enhancement (Evershed MR in Ellenborough Park)
o E.g. right of way to a back gate = always benefit the land in its normal use
Proximity
2 plots of land need to be reasonably close to each other So 1 tenement could confer benefit on another
o The further apart the 2 plots are, the more difficult it will be to establish that the right accommodates DT
o Bailey v Stephens (1862) 12 CB (ns) 91 per Byles J at [115]: Grant to owner of land in Kent of a right of way over
land in Northumberland would not create an easement
BUT 2 plots need not be physically contiguous Right can exist over land which is separated from DT
o Intervening land is NOT fatal, if DT is accommodated – Todrick v Western National Omnibus Co [1934] Ch 568
Nature of claim
Whether claimed right has natural connection with the estate VS. merely confers a personal advantage for owner?
Business use: if DT is used for business purposes, a right that facilitates business use of the land = easement
o Accepted = easement: accommodate DT & facilitates business use of land
DT as pub business: right to put advertising sign – Moody v Steggles (1879)
DT as hotel: right to moor boats on nearby island – P & S Platt Ltd v Crouch [2003] EWCA Civ 1110
o Rejected: didn’t accommodate/benefit land (DT), claimed right = merely a business itself – Hill v Tupper (1863)
o Difference: [Accepted case] Right was supportive of business use of DT >< [Rejected case] Right being claimed
as easement = the business itself
Recreational use:
o Old law in Re Ellenborough Park: easement = ‘a right of utility and benefit, and not one of mere recreation and
amusement’ ‘[M]ere recreational easements’ (e.g. horse-racing, games): not accommodate DT ≠ Right to
rest/exercise in park that does accommodate & benefit DT
o New law in Regency Villas: recreation = impt in life & could be accepted as accommodating normal use of DT
Recreational easements aren’t impossible
BUT there are still constraints:
Must satisfy ‘accommodation’ requirement (right connected to normal enjoyment of land)
Must also satisfy other requirements for easement (DO & SO, capable of forming subject-matter…)
Lord Briggs: Where actual/intended use of DT is recreational, requirement ‘generally’ will be
satisfied Recreational rights will be connected to their normal use Quite easy to satisfy
Lord Carnwath (dissent):
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