LAND LAW PQ STRUCTURE – EASEMENTS: à easements are
limited rights that one landowner may enjoy over the land of a neighbour.
It is a proprietary interest in land, so that (subject to the rules of registered and unregistered conveyancing)
the benefit of it passes with a transfer of the dominant tenement and the burden of it passes with a transfer of
the servient tenement.
Rights Over Other Peoples Land:
àForm of ownership – defined, enforceable proprietary interests over another’s land.
• 3 Types of Rights:
- Profits – right to take natural resources from another’s land.
- Restrictive Covenants – right to restrict what another can do on their land. - Easement – Right
to do something on another’s land.
• Freehold/Leasehold = exclusive possession.
- These rights = non-possessory – holder has no right to possess the land. - Must not interfere
with the servient owner’s exclusive possession.
Statutory Definition of Land – Includes Easements:
S205(1)(ix) LPA 1925 à‘“Land” includes… any tenure, and mines and minerals, whether or not held apart
from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any
other way) and other corporeal hereditaments; also, a manor, an advowson, and a rent and other incorporeal
hereditaments, and an easement, right, privilege, or benefit in, over or derived from land’.
- Corporeal hereditaments = tangible (e.g., land, buildings).
- Incorporeal hereditaments = intangible rights (e.g., easements, profits).
Regency Villas v. Diamond Resorts [2019] AC 553:
• 1981: Transfer granted owners of timeshare villas (DT) the right to use leisure facilities on a nearby
estate (ST). Facilities: tennis courts, gardens, gym, outdoor swimming pool. No obligation on ST to
maintain facilities; grantor intended public usage to fund maintenance. Respondents claimed an
easement over facilities.
HELD:
- Purely recreational rights (e.g., sports) can be valid easements if; they accommodate the DT, they
do not impose positive obligations on ST, and they satisfy the Ellenborough conditions.
à (judgement) ‘the essence of an easement is that it is a species of property right, appurtenant to land,
which confers rights over neighbouring land. The two parcels of land are traditionally, and helpfully, called
the dominant tenement and the servient tenement. The effect of the rights being proprietary in nature is that
they run with the land both for the benefit of the successive owners of the dominant tenement, and by way of
burden upon the successive owners of the servient tenement. By contrast merely personal rights do not
generally have those characteristics’. à Per Lord Briggs – ‘The Court of Appeal's declaration confirmed
their rights to specific existing facilities, namely the golf course, squash courts, tennis courts, croquet lawn,
putting green and Italianate gardens, but excluded rights in relation to anything provided on the ground
floor and basement of the Mansion House. The claimants' monetary entitlement in relation to payments in
and after 2012 was correspondingly reduced, and the defendant’s obtained judgment for a quantum meruit
in respect of those facilities provided in and after 2012 to which the claimants' rights did not extend, of
which the most important was the swimming pool’
à ‘Recreation, including sport, and the amusement which comes with it, does confer utility and benefit
on those who undertake it.’
- Proprietary right – attaches to the estate, not the land itself.
- Runs with the land – benefits/burdens successive owners of DT/ST. - DT =
benefits from the right; ST = burdened by the right.
(a) Ouster Argument rejected:
• Use of facilities did not oust ST. DT could use, not possess or control.
,à ‘it is wrong in principle to test the issue whether a grant of rights amounts to an ouster of the servient
owner by reference to what the dominant owner may do by way of step-in rights if the servient owner ceases
to carry out the necessary management…’
à’the ouster question should be addressed by reference to what may be supposed to have been the ordinary
expectations of the parties at the time of the grant’.
(b) No Obligation to Maintain = No Incompatibility”
• Principle – easement must NOT impose a positive obligation on ST, ST must only allow use (e..g, be
passive).
• Just because parties expect the ST to maintain something, does not mean there is a legal obligation. •
Even if the ST stops maintaining the facilities, the right itself remains valid.
à ‘an easement does not require anything more than mere passivity on the part of the servient owner’. à
‘there is nothing inherently incompatible with the recognition of a grant of rights over land as an easement
that the parties share an expectation that the servient owner will…manage and maintain’. à ‘this
conclusion, that meaningful use of the rights granted did not depend upon the continued provision of
management, maintenance, repair and renewal by the servient owner, is also sufficient to confirm that use of
the facilities was granted by way of right’.
• If the ST stops maintenance, the DT may take limited steps (e.g., mowing grass), but this does not amount
to control or ‘ouster’.
à ‘The exercise of step-in rights by the dominant owners would arise only in the event that the owners
of the Park gave up the management…nothing in the terms of the Facilities Grant impinged upon those
rigts of management and control in any way’.
à ‘Provided that…the facilities in the Park could be used…without taking control of the Park, then no
question of ouster arises’. à ‘The Facilities Grant…did not oblige the servient owner to maintain or
operate any particular facilities, or any facilities. That was an inherent limitation in the value of the
Facilities Grant, but it does not deprive it of the character of an easement’.
(c) No Issue with Futurity or Perpetuity:
• Even though new facilities were added later, the SC held that new/replacement facilities could still fall
under the original grant.
à ‘the absence of express words of futurity is amply compensated by the inherent nature of the subject
matter…bound to be subject to significant alterations and changes during its business life’.
à’the grant consisted of an immediately effective grant to use the…facilities in a leisure complex with
existed…the fact that… those facilities might change thereafter…does not bring the grant within the rule
[against perpetuities]’.
(a) SUBSTANCE:
Re Ellenborough Park [1955] 3 WLR 892:
• Estate developer conveyed houses around private park. Deeds gave owners right to use the park as a
pleasure ground, subject to sharing maintenance costs. After requisition in WW2, owners sought to
assert this right as an easement.
1. There must be a DT and ST.
2. The right must accommodate the DT.
3. The DT and ST must be different persons.
4. The right must be capable of forming the subject matter of a grant.
1. THERE MUST BE A DT AND ST: à must be two identifiable parcels of land, both
must be clearly identified at time of grant. - Talk about who benefits from what.
, Must identify tenements at creation:
London & Blenheim Estates Ltd v. Ladbroke Retail Parks Ltd [1994] 1 WLR 31:
• Co-op conveyed land to LB with a right to future easements if LB later acquired additional land.
HELD:
- No easement could be created because the Dominant land was not identified at time of grant.
Cannot create an easement over unspecified land as too uncertain.
à (judgement) ‘if one asks why the law should require that there should be a dominant tenement before
there can be a grant, or a contract for the grant, of an easement sufficient to create an interest in land
binding successors in title to the servient land, the answer would appear to lie in the policy against
encumbering land with burdens of uncertain extent’.
Must relate only to the identified dominant land:
Harris v. Flower & Sons (1905) – easements only benefit the land specified; cannot be extended to other
land owned by the DT holder.
Peacock v. Custins [2002] 1 WLR 1815:
• Farmer used access track (granted for L1) also to access L2 which was adjacent.
HELD:
- This went beyond the grant – even if the initial use was genuine, using the way for L2 was not
permitted.
- Exception – trivial ancillary use (e.g., picnic) might not breach if incidental, but not for
commercial purposes.
- Rights cannot be expanded or repurposes without consent. à Per Schiemann LJ – ‘The
authorities indicate that the burden on the owner of the servient tenement is not to be increased
without his consent.’. à’ This cannot sensibly be described as ancillary to the cultivation of the
red land.’
Right Must Relate Only to the Dominant Tenement:
Giles v. Tarry [2012] EWCA Civ 837 – No benefit beyond DT:
• D had a right of way over C’s driveway to access field 1 (DDT). D used this to get sheep to field 2, via
field 1 and a public road.
HELD:
- D used ST for the benefit of land other than the DT – this was impermissible. This was an
artificial device to access land not included in the grant.
à (judgement) – ‘In my judgment we are dealing with one continuous operation, the object of which as the
judge found, is to enable the sheep to graze the green land via the right of way. The use of the highway as a
transient stopover is itself a “colourable” use of the highway. The whole sequence is, as the judge found, an
artificial device.’.
à’But the fact that there may exist legitimate ways in which Mr Tarry can achieve his objective does not
make an illegitimate one lawful.’
- Had other ways in which he could achieve his objective – different routes he could’ve taken etc.
- Intention matters – the substance and purpose of the use governs validity, not just the route taken.
Gore v. Naheed [2017] EWCA Civ 369 – Ancillary Use Permitted:
• D had access to cottage (DT) via a driveway. Also used it to access detached garage next to cottage.
HELD:
- Use of driveway to access garage next to cottage was permitted – it was ancillary to use of DT. à
(judgement) – ‘use of the garage was ancillary to the use and enjoyment of the Granary’.
- Where land or building accessed is functionally part of the DT, such use may fall within the scope of
an easement.
limited rights that one landowner may enjoy over the land of a neighbour.
It is a proprietary interest in land, so that (subject to the rules of registered and unregistered conveyancing)
the benefit of it passes with a transfer of the dominant tenement and the burden of it passes with a transfer of
the servient tenement.
Rights Over Other Peoples Land:
àForm of ownership – defined, enforceable proprietary interests over another’s land.
• 3 Types of Rights:
- Profits – right to take natural resources from another’s land.
- Restrictive Covenants – right to restrict what another can do on their land. - Easement – Right
to do something on another’s land.
• Freehold/Leasehold = exclusive possession.
- These rights = non-possessory – holder has no right to possess the land. - Must not interfere
with the servient owner’s exclusive possession.
Statutory Definition of Land – Includes Easements:
S205(1)(ix) LPA 1925 à‘“Land” includes… any tenure, and mines and minerals, whether or not held apart
from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any
other way) and other corporeal hereditaments; also, a manor, an advowson, and a rent and other incorporeal
hereditaments, and an easement, right, privilege, or benefit in, over or derived from land’.
- Corporeal hereditaments = tangible (e.g., land, buildings).
- Incorporeal hereditaments = intangible rights (e.g., easements, profits).
Regency Villas v. Diamond Resorts [2019] AC 553:
• 1981: Transfer granted owners of timeshare villas (DT) the right to use leisure facilities on a nearby
estate (ST). Facilities: tennis courts, gardens, gym, outdoor swimming pool. No obligation on ST to
maintain facilities; grantor intended public usage to fund maintenance. Respondents claimed an
easement over facilities.
HELD:
- Purely recreational rights (e.g., sports) can be valid easements if; they accommodate the DT, they
do not impose positive obligations on ST, and they satisfy the Ellenborough conditions.
à (judgement) ‘the essence of an easement is that it is a species of property right, appurtenant to land,
which confers rights over neighbouring land. The two parcels of land are traditionally, and helpfully, called
the dominant tenement and the servient tenement. The effect of the rights being proprietary in nature is that
they run with the land both for the benefit of the successive owners of the dominant tenement, and by way of
burden upon the successive owners of the servient tenement. By contrast merely personal rights do not
generally have those characteristics’. à Per Lord Briggs – ‘The Court of Appeal's declaration confirmed
their rights to specific existing facilities, namely the golf course, squash courts, tennis courts, croquet lawn,
putting green and Italianate gardens, but excluded rights in relation to anything provided on the ground
floor and basement of the Mansion House. The claimants' monetary entitlement in relation to payments in
and after 2012 was correspondingly reduced, and the defendant’s obtained judgment for a quantum meruit
in respect of those facilities provided in and after 2012 to which the claimants' rights did not extend, of
which the most important was the swimming pool’
à ‘Recreation, including sport, and the amusement which comes with it, does confer utility and benefit
on those who undertake it.’
- Proprietary right – attaches to the estate, not the land itself.
- Runs with the land – benefits/burdens successive owners of DT/ST. - DT =
benefits from the right; ST = burdened by the right.
(a) Ouster Argument rejected:
• Use of facilities did not oust ST. DT could use, not possess or control.
,à ‘it is wrong in principle to test the issue whether a grant of rights amounts to an ouster of the servient
owner by reference to what the dominant owner may do by way of step-in rights if the servient owner ceases
to carry out the necessary management…’
à’the ouster question should be addressed by reference to what may be supposed to have been the ordinary
expectations of the parties at the time of the grant’.
(b) No Obligation to Maintain = No Incompatibility”
• Principle – easement must NOT impose a positive obligation on ST, ST must only allow use (e..g, be
passive).
• Just because parties expect the ST to maintain something, does not mean there is a legal obligation. •
Even if the ST stops maintaining the facilities, the right itself remains valid.
à ‘an easement does not require anything more than mere passivity on the part of the servient owner’. à
‘there is nothing inherently incompatible with the recognition of a grant of rights over land as an easement
that the parties share an expectation that the servient owner will…manage and maintain’. à ‘this
conclusion, that meaningful use of the rights granted did not depend upon the continued provision of
management, maintenance, repair and renewal by the servient owner, is also sufficient to confirm that use of
the facilities was granted by way of right’.
• If the ST stops maintenance, the DT may take limited steps (e.g., mowing grass), but this does not amount
to control or ‘ouster’.
à ‘The exercise of step-in rights by the dominant owners would arise only in the event that the owners
of the Park gave up the management…nothing in the terms of the Facilities Grant impinged upon those
rigts of management and control in any way’.
à ‘Provided that…the facilities in the Park could be used…without taking control of the Park, then no
question of ouster arises’. à ‘The Facilities Grant…did not oblige the servient owner to maintain or
operate any particular facilities, or any facilities. That was an inherent limitation in the value of the
Facilities Grant, but it does not deprive it of the character of an easement’.
(c) No Issue with Futurity or Perpetuity:
• Even though new facilities were added later, the SC held that new/replacement facilities could still fall
under the original grant.
à ‘the absence of express words of futurity is amply compensated by the inherent nature of the subject
matter…bound to be subject to significant alterations and changes during its business life’.
à’the grant consisted of an immediately effective grant to use the…facilities in a leisure complex with
existed…the fact that… those facilities might change thereafter…does not bring the grant within the rule
[against perpetuities]’.
(a) SUBSTANCE:
Re Ellenborough Park [1955] 3 WLR 892:
• Estate developer conveyed houses around private park. Deeds gave owners right to use the park as a
pleasure ground, subject to sharing maintenance costs. After requisition in WW2, owners sought to
assert this right as an easement.
1. There must be a DT and ST.
2. The right must accommodate the DT.
3. The DT and ST must be different persons.
4. The right must be capable of forming the subject matter of a grant.
1. THERE MUST BE A DT AND ST: à must be two identifiable parcels of land, both
must be clearly identified at time of grant. - Talk about who benefits from what.
, Must identify tenements at creation:
London & Blenheim Estates Ltd v. Ladbroke Retail Parks Ltd [1994] 1 WLR 31:
• Co-op conveyed land to LB with a right to future easements if LB later acquired additional land.
HELD:
- No easement could be created because the Dominant land was not identified at time of grant.
Cannot create an easement over unspecified land as too uncertain.
à (judgement) ‘if one asks why the law should require that there should be a dominant tenement before
there can be a grant, or a contract for the grant, of an easement sufficient to create an interest in land
binding successors in title to the servient land, the answer would appear to lie in the policy against
encumbering land with burdens of uncertain extent’.
Must relate only to the identified dominant land:
Harris v. Flower & Sons (1905) – easements only benefit the land specified; cannot be extended to other
land owned by the DT holder.
Peacock v. Custins [2002] 1 WLR 1815:
• Farmer used access track (granted for L1) also to access L2 which was adjacent.
HELD:
- This went beyond the grant – even if the initial use was genuine, using the way for L2 was not
permitted.
- Exception – trivial ancillary use (e.g., picnic) might not breach if incidental, but not for
commercial purposes.
- Rights cannot be expanded or repurposes without consent. à Per Schiemann LJ – ‘The
authorities indicate that the burden on the owner of the servient tenement is not to be increased
without his consent.’. à’ This cannot sensibly be described as ancillary to the cultivation of the
red land.’
Right Must Relate Only to the Dominant Tenement:
Giles v. Tarry [2012] EWCA Civ 837 – No benefit beyond DT:
• D had a right of way over C’s driveway to access field 1 (DDT). D used this to get sheep to field 2, via
field 1 and a public road.
HELD:
- D used ST for the benefit of land other than the DT – this was impermissible. This was an
artificial device to access land not included in the grant.
à (judgement) – ‘In my judgment we are dealing with one continuous operation, the object of which as the
judge found, is to enable the sheep to graze the green land via the right of way. The use of the highway as a
transient stopover is itself a “colourable” use of the highway. The whole sequence is, as the judge found, an
artificial device.’.
à’But the fact that there may exist legitimate ways in which Mr Tarry can achieve his objective does not
make an illegitimate one lawful.’
- Had other ways in which he could achieve his objective – different routes he could’ve taken etc.
- Intention matters – the substance and purpose of the use governs validity, not just the route taken.
Gore v. Naheed [2017] EWCA Civ 369 – Ancillary Use Permitted:
• D had access to cottage (DT) via a driveway. Also used it to access detached garage next to cottage.
HELD:
- Use of driveway to access garage next to cottage was permitted – it was ancillary to use of DT. à
(judgement) – ‘use of the garage was ancillary to the use and enjoyment of the Granary’.
- Where land or building accessed is functionally part of the DT, such use may fall within the scope of
an easement.
