Detailed and easy to understand notes on easements and profit. The notes are easy to follow, detailing important case law and statutes; from the characteristics of an easement to legal and equitable easements.
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Easements and Profits Notes
1. What is an easement
They are incorporeal hereditaments (intangible heirlooms)
They comprise of limited rights that one landowner may enjoy over the land of
a near neighbour
Examples
o Right of way
o Right of light
o Right to use a neighbour’s land in connection with the movement of
aircraft (Dowty Bolton Paul Ltd v Wolverhampton Corp)
o Right to park on land (Moncrieff v Jamieson)
o Right to cross neighbouring land with shopping trolleys (London and
Blenheim Estates Ltd v Ladbroke Retail Parks Ltd)
o Right to the enjoyment of lighting and exit signs (Bratt’s Ltd v
Habboush)
2. Characteristics of an easement
Care must be taken in defining the types of right that may be recognised as
an “Easement”.
If too many rights, or rights that are vague and uncertain, can amount to
easements, then the owner of the servient tenement might find the use and
enjoyment of his land seriously disrupted.
Conversely, if the law recognises too few easements, or is stagnant in the
face of economic and social change it would be impossible for the owners of
the dominant tenement to safeguard the value and amenity of their property.
o There is an element of public policy in regard to the granting of
easements.
A balance has to be struck, accommodating the needs of the dominant
tenement, while ensuring that the servient tenement does not become
overburdened and inalienable, all in the context of a modern society.
The four essential characteristics of an easement are taken from Re
Ellenborough Park, itself an adoption of the criteria put forward by Professor
Cheshire.
o They represent the distillation of much case law, but are not to be
treated as if they were a statute.
o If these criteria are satisfied, it means that the right is capable of being
an easement
o Easement only exist when it is inherently easement-like and was
created as an easement using the appropriate formalities.
o Failure to use the appropriate formalities means that the potential
easement will not exist and will take effect only as a personal licence.
1. Dominant and servient tenement
There must be a DT and ST
Easements are rights that exist for the benefit of one piece of land, which is
exercised over another piece of land
There must be a land that is benefited (DT), and land that is burdened (ST).
In technical terms, easement cannot exist “in gross”
, o Both DT and ST must be identifiable at the time of creation of
easement.
o This means using a deed or prescription in order to create legal
easement. For equitable easement, it means that an enforceable
written instrument or a claim of proprietary estoppel.
o The creation of an easement for the benefit of land not yet identified is
impossible (London and Blenheim Estates v Ladbroke Retail
Parks)
This is to ensure that the impact of easement on the ST is limited
o So that duh not everybody will be able to enjoy rights over the ST.
That’d just be very annoying to the ST.
Also to confine the ambit of easements to those rights that truly benefit other
land. Keyword here is LAND.
2. Separation of the dominant and servient tenement
ST and DT should be owned or occupied by different persons (Roe v
Siddon), since an easement is essentially a right in another person’s land.
Should the DT and ST come into the ownership and occupation of the same
person, any easement over the ST will be extinguished. A person cannot have
an easement against themselves.
o A tenant can enjoy an easement over land retained by the landlord,
and vice versa, since the relevant land is not owned and occupied by
the same person (Wright v Macadam, Bratt’s Ltd v Habboush)
o A mere licensee, however, does not have an estate in the land, thus
cannot create an easement between him and the estate owner.
If the DT and ST come into the same occupation (but not the same
ownership) of the same person, the easement is suspended for the duration
of the common occupation. It may be revived later.
3. Easement must accommodate (benefit) the dominant tenement
it confines easements to rights that are attached in rem (attached to the land),
and not attached merely to the person (in personam)
The general idea is that easement must benefit the user of the land, the value
of the land, and the mode of occupation of the land
There are no set criteria for judging whether an alleged easement is
sufficiently proprietary (concerns land) in nature. Each case must be decided
on its own facts.
Guidelines on what is required:
o A. DT and ST must be sufficiently approximate for the ST to confer a
benefit to DT (Bailey v Stevens)
DT and ST need to be adjacent, but the further they are from
each other, the less likely it is that the court would regard an
alleged easement over one as benefiting the other.
o B. Alleged right must not confer a purely personal advantage on the
owner of the DT.
Hill v Tupper – owner of a canal granted claimant the right to
put pleasure boats on the canal for profit. But this was held to be
a personal advantage, not a right attaching to the claimant’s
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