Easements

Easements

1. Re Ellenborough Park requirements

   • Must be DT and ST
     • Alfred Beckett v Lyons
   • Right must accommodate the DT
     • Right must benefit the land and not be a mere personal benefit
       • Question is, is right attached to land or only to owner specifically?
     • Proximity
       • Bailey v Stephens
       • Plots don't have to be physically adjacent but the further the separation, the harder it is to find an easement
         • Re Ellenborough
     • Nature of the rught
       • Business use
         • Contrast Moody v Steggles and Hill v Tupper
           • Is right used in support of business? If so, capable of being an easement. If used as basis for business, not capable of being an easement.
   • Must be capable of being subject matter of a grant
     • Must be capable of being granted by deed.
     • Must be sufficiently defined
       • William Aldred's Case
     • New easements can be found
       • Dowty v Wolverhampton Corporation
       • Except if;
         • They are negative rights
           • Except; right to light and right to building support
             • Prescription Act 1832
             • Browne v Flower
         • They require positive action of the ST
           • Moncrieff v Jamieson
           • Except maintenance of fences to keep animals in
             • Bolus v Hinstorke
     • Excessive use
       • Moncrieff v Jamieson
         • Does servient owner retain use and possession of servient land? If yes, use is not excessive
   • DT and ST must be owned by different people

2. Creation and formalities

   • Legal
     • Must be created for the equivalent of a legal estate
       • s1(2) LPA 1925
     • Creation
       • Statute
       • Deed
         • S52 LPA 1925
           • Must satisfy provisions of S1(2) and (3) of LPA MP 1989
       • Prescription
     • Reg. Land
       • Overrides: s70 LRA 1925
     • Unreg. Land
       • Purchasers take subject to it
   • Equitable
     • Registered land
       • Only legal easements can override reg. dispos.
         • LRA 2002
     • Unregistered land
       • Must be registered as a land charge
     • Created if an easement doesn't satisfy requirements of a legal easement
   • Express reservation
     • No need for formal conveyance
       • s.65 LPA
   • Implied reservation
     • Necessity
       • i.e. If the DT is land-locked and can't leave land/access highway except for over other land
         • Pinnington v Galland
         • Manjang v Drameh
     • Mutual intention
   • Implied Grant
     • s62 LPA 1925
       • Wright v McAdam
       • Requirements
         • Capable grantor
         • Common Ownership
           • Odey v Barber
         • Must be capable of being an easement
           • Re Ellenborough
         • Must have been conveyed
     • Wheeldon v Burrows
       • The Quasi-DT must be sold first
       • The quasi-easement must be continuous and apparent
       • The right must be necessary for the enjoyment of the land
   • Prescription

3. Similar rights

   • Public rights
     • Right of Way
       • 20 years Uninterrupted Use
         • s31. Highways Act 1980
   • Profits A Prendre
     • Usually natural produce
       • Crops or animals
   • Restrictive Covenants