8 Third party rights over the land – Easements
A third party right over another person’s land might constitute an easement which is capable of binding future owners of that land
Not all easements are created expressly in a document. Easements can arise impliedly or by prescription over a long period of time
An easement is a right that is attached to one piece of land and imposes a corresponding burden on another price of land – can be positive (eg
right of way) or negative (eg a right to light). Negative easements are rare.
Contrast easement with a licence – which allows temporary access on land, eg fetching football from neighbour’s garden
Essential Characteristics of an Easement
Re Ellenborough Park [1956] – purchasers of plot of land surrounding park were given a right to use the park for recreational purposes.
Subsequent owner wanted to build on the park, but the easements prevented this.
Four characteristics essential for a valid easement;
(a) A dominant and a servient tenement – two parcels of land, one has the benefit of the easements and the other has the burden of it
(b) An easement must ‘accommodate’ the dominant tenement
(c) The dominant and servient tenements must not be owned an occupied by the same person
(d) A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant
a The Need for a Dominant and Servient Tenement
Land having the benefit of an easement is referred to as the dominant tenement
Land subject to an easement is known as the servient tenement
Cannot have easement in gross – so without owning any land which is capable of benefiting from the right (Rangeley v Midland Railway [1869]
– there can be no easement … unless there be both a servient and a dominant tenement’)
b The Easement must Accommodate, or Benefit, the Dominant Tenement
Re Ellenborough Park – not enough to show that the right enhanced the value of the dominant tenement – must be connected with the
normal enjoyment of the property
Connection between a right and the normal enjoyment of property is a question of fact
The right not only enhances the owner’s enjoyment of his land, but also is sufficiently connected with the land
Bailey v Stephens [1862] – ‘A right of way over land in Northumberland cannot accommodate land in Kent’
c The Dominant and Servient Tenements must not the both Owned and Occupied by the Same Person
Cheshire’s Modern Real Property: ‘dominant and servient owners must be different persons’ – slightly changed since this
Possible for one person to own an estate in both the dominant and the servient tenement, eg landlord may grant the tenant an
easement
If someone else owned the field you had access through, it could be an easement. But since you own both, it’s a ‘quasi-easement’ –
which become important if you sell your house but retain ownership of the field, though not vice versa
d The Right must be Capable of Forming the Subject Matter of a Grant
Right must be one capable of being granted by deed
Must be capable grantor (must have power to grant the right, eg company that by its constitution hasn’t been given power can’t),
and a capable grantee (must be capable of receiving it, eg inhabitants of a village is too vague and fluctuating body)
Other feature in Re Ellenborough;
(i) Whether the rights are expressed in language which is too wide and vague;
(ii) Whether such rights would amount to rights of joint occupation or substantially deprive the park owners of proprietorship
or legal possession; and
(iii) Whether such rights would constitute mere rights of recreation, possessing no quality or utility or benefit
i When does a right become too vague to constitute an easement?
Keppel v Bailey [1834] – Lord Brougham opposed law recognising ‘incidents of a novel kind’, BUT ‘the category of easements must alter and expand
with the changes that take place in the circumstances of mankind’ – Dyce v Lady James Hay [1852]
, Hunter v Canary Wharf [1997] – write summary of facts here
Defendants argued that, at common law, you can build on your land whatever you want. its just unfortunate if it happens to interfere with a
neighbour’s light, air or view.
Distinction between right to a view and rights to light, air and support in Dalton v Angus [1881] ;
- Law cant let someone impose easement for nice view across miles of countryside, BUT
- For a house with windows overlooking neighbours’ land, the law recognises that you may have a right to the passage of light to the
windows – because you have enjoyed the passage of light for a long period.
- Claiming a right of easement of light will only affect immediate neighbours, in close proximity
A person erecting a building has no means of knowing precisely what its effect will be on TV reception – also the effect isn’t confined to buildings in
immediate neighbourhood – would impose an immense burden on a person wishing to build on his land. He could be sued by ‘an indeterminate
number of claimants, each claiming compensation’
Also, usually safeguards in planning system giving people likely to be affected by the development of land an opportunity to raise objections. Also,
problem here was only temporary, since BBC brought a relay transmitter into service and aerials were aligned to the new transmitters
From Hunter v Canary Wharf – courts won’t allow unlimited number of rights to exist as easements.
→ BUT Regency Villas v Diamond Resorts says categories of easements remains open to further expansion
For negative easements, the list is closed;
Phipps v Pears [1965] – court didn’t recognise easement for the right for a wall of a detached house to enjoy protection from the weather from the
wall of adjoining house – would prevent neighbour from demolishing his own house.
Negative easements could prevent neighbour from enjoying his land to the full and he wouldn’t be free to carry out legitimate development
BUT right to light is accepted – but such a right must be through a specific aperture, eg window and cant be a general right to light (Colls v Home &
Colonial Stores [1904])
ii When does a right amount to possession?
Question of the extent to which the owner of land is excluded from using the land himself
Copeland v Greenhalf [1952] – no limit placed on the no. of vehicles that could be stored, nor the length of time for which they could be stored,
the effect was to exclude the claimant owner. This wasn’t a claim for an easement, therefore, but for possession of the land
Degree of exclusion of the owner is very relevant in the case of a claim to a right to park a motor vehicle – two cases;
Lord & Blenhein Estates v Ladbroke Retail Parks [1992] – claimant asserted here that the right for its customers to park in a car park was a valid
easement
- Judge Baker considered it to be a question of degree
- The right wouldn’t be an easement if the effect of it was to leave the servient owner without any reasonable use of his land
Bachelor v Marlow [2003] – the defendants parked cars on a strip of land which was later acquired by the claimant. The defendants claimed a right
to park as an easement
- Here, the right to park wasn’t an easement – the exclusive right to park six cars for nine ½ hours every day was so extensive a right as to
leave the appellants without any reasonable use of their land. It was, therefore, too extensive a right to amount to an easement
Test established in Bachelor v Marlow was criticised in Moncrieff v Jamieson [2007] – the question of whether a right would leave the servient
owner with no ‘reasonable use’ needed some qualification
Where rights to park were granted, the servient owner still retained the ability to use the land in other ways.
Lord Scott suggest test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in
question, control of the servient land
Lord Neuberger concurred – ‘a right can be an easement notwithstanding that the dominant owner effectively enjoys exclusive
occupation, on the basis that the essential requirement is that the servient oner retains possession and control’
iii When is a right a ‘mere right of recreation’, and when is it capable of being an easement?
Regency Villas Title v Diamond Resorts (Europe) [2018] – the class of potential easements isn’t closed. An easement can exist to use a golf course
Here, an entry was made on the property register stating that the land had the right to use the swimming pool. Question of whether the rights
were capable of forming subject matter of a grant – whether the rights failed as easements because they amounted to ‘mere rights of recreation’
Re Ellenborough Park – an easement allowing the dominant owner to walk over all parts of the servient tenement purely for pleasure could exist
in law. held to be a ‘relatively small step’ to extend such rights to the enjoyment of sporting and other recreational facilities.
o No reason why an easement couldn’t be granted for recreational purposes
o No compelling reason to construe the rights as personal; and
o Very good reason for construing them as easements
