Lecture: Easements (2/4)
What is required for a right to become an easement?
1. There must be a dominant and a servient tenement
2. The dominant and servient owners must be different persons
3. An easement must accommodate the dominant tenement
4. The right must be capable of forming the subject matter of a grant (must ‘lie in
grant’).
Part 4 of the test:
There must be a capable grantor and grantee.
The right needs to be well defined.
The right must be in the nature of an easement.
The right must not be too exclusive of the Servient Owner.
Particular restrictions for negative easements
Servient owner is the one who owns the land over which the right is being exercised. There is
no easement known to law which gives exclusive and unrestricted use of a piece of land’. – If
you begin to claim ownership of the land, instead of the actual owner, then it is not an
easement. An easement is only a right. The main problems in this area are storage and car
park.
Easements that have been allowed within the issue of exclusion:
STORAGE CASES
Case of Miller v Emcer Products: right to use a lavatory. Allowed on the basis that these
periods of exclusion were short.
Case of Wright v Macadam: storage case, woman granted right to use shed by landlord. This
right was held to amount to an easement. When full of her coal, difficult to see how he could
have any use, surely, he had been completely excluded? Hence the decision has been
criticised.
See also Copeland v Greenhalf: strip of land used to store vehicles. Held that because he was
storing these vehicles, it amounted to joint-occupation, i.e. he was excluding the dominant
owner and therefore it cannot amount to an easement. This case does not fit with the previous
one.
This was applied in case of Grigsby v Melville: M claimed easement of G’s seller, exclusive
right – as far as the court was concerned for Wright and Macadam, there was no exclusion –
, says that W v M does not have enough detail, so ignores it and applies the previous case.
Exclusive use of the seller excludes the servient owner and therefore it is not an easement.
Issue of excluding the servient owner is a matter of degree, ‘To an extent, a problem of this
sort may be one of degree’. So, you look to the extent that the SO is excluded.
CAR PARKING
For a long time, no express recognition that you could have an easement over a car park, but
now there is. See case of London and Blenheim Estates:
Per Judge Paul Baker QC:
‘The essential question is one of degree. If the right granted in relation to the area
over which it is to be exercised is such that it would leave the servient owner with no
reasonable user of his land whether for parking or anything else it could not be an
easement’.
This is the test of the case, you have to consider whether the right granted leaves the SO with
reasonable use of his land.
Further applied in Batchelor v Marlow: Right was granted to park 6 cars on strip of land all
day. Land could only hold 6 cars.
‘His right to use the land is curtailed altogether for intermittent periods throughout
the week. Such a restriction would…. make his ownership illusory’ Now referred to as
the ‘ouster principle’.
If his ownership is illusory, then it cannot be an easement. Ouster principle – where the SO
doesn’t have reasonable user, they have been ousted and therefore it is not an easement.
Scottish case of Moncreiff v Jamieson: remember this is not binding but simply obiter. Shift
in approach. Here a clear rejection from Lord Scott, he rejects the test of reasonable user,
instead says the question should fall on the point of possession, ownership and control. What
can the SO still do? Really, they can do anything they want so long as it doesn’t interfere
with the parking of the cars. They still have possession and control just subject to someone
else parking their car.
Since then:
Verdi v Chana: Batchelor test was applied, idea of reasonable user, illusory – but
court then looked at things which would mean that the owner’s use was not illusory.
I.e. they could plant a tree etc. I.e. this is also along the lines of the Moncreiff
approach. This is enough to not make it illusory. The Law Commission recommended
that even if the SO can’t make reasonable use of the land, that it should still be
allowed to be an easement. So, there is a clear movement towards the Moncrieff
approach.
What is required for a right to become an easement?
1. There must be a dominant and a servient tenement
2. The dominant and servient owners must be different persons
3. An easement must accommodate the dominant tenement
4. The right must be capable of forming the subject matter of a grant (must ‘lie in
grant’).
Part 4 of the test:
There must be a capable grantor and grantee.
The right needs to be well defined.
The right must be in the nature of an easement.
The right must not be too exclusive of the Servient Owner.
Particular restrictions for negative easements
Servient owner is the one who owns the land over which the right is being exercised. There is
no easement known to law which gives exclusive and unrestricted use of a piece of land’. – If
you begin to claim ownership of the land, instead of the actual owner, then it is not an
easement. An easement is only a right. The main problems in this area are storage and car
park.
Easements that have been allowed within the issue of exclusion:
STORAGE CASES
Case of Miller v Emcer Products: right to use a lavatory. Allowed on the basis that these
periods of exclusion were short.
Case of Wright v Macadam: storage case, woman granted right to use shed by landlord. This
right was held to amount to an easement. When full of her coal, difficult to see how he could
have any use, surely, he had been completely excluded? Hence the decision has been
criticised.
See also Copeland v Greenhalf: strip of land used to store vehicles. Held that because he was
storing these vehicles, it amounted to joint-occupation, i.e. he was excluding the dominant
owner and therefore it cannot amount to an easement. This case does not fit with the previous
one.
This was applied in case of Grigsby v Melville: M claimed easement of G’s seller, exclusive
right – as far as the court was concerned for Wright and Macadam, there was no exclusion –
, says that W v M does not have enough detail, so ignores it and applies the previous case.
Exclusive use of the seller excludes the servient owner and therefore it is not an easement.
Issue of excluding the servient owner is a matter of degree, ‘To an extent, a problem of this
sort may be one of degree’. So, you look to the extent that the SO is excluded.
CAR PARKING
For a long time, no express recognition that you could have an easement over a car park, but
now there is. See case of London and Blenheim Estates:
Per Judge Paul Baker QC:
‘The essential question is one of degree. If the right granted in relation to the area
over which it is to be exercised is such that it would leave the servient owner with no
reasonable user of his land whether for parking or anything else it could not be an
easement’.
This is the test of the case, you have to consider whether the right granted leaves the SO with
reasonable use of his land.
Further applied in Batchelor v Marlow: Right was granted to park 6 cars on strip of land all
day. Land could only hold 6 cars.
‘His right to use the land is curtailed altogether for intermittent periods throughout
the week. Such a restriction would…. make his ownership illusory’ Now referred to as
the ‘ouster principle’.
If his ownership is illusory, then it cannot be an easement. Ouster principle – where the SO
doesn’t have reasonable user, they have been ousted and therefore it is not an easement.
Scottish case of Moncreiff v Jamieson: remember this is not binding but simply obiter. Shift
in approach. Here a clear rejection from Lord Scott, he rejects the test of reasonable user,
instead says the question should fall on the point of possession, ownership and control. What
can the SO still do? Really, they can do anything they want so long as it doesn’t interfere
with the parking of the cars. They still have possession and control just subject to someone
else parking their car.
Since then:
Verdi v Chana: Batchelor test was applied, idea of reasonable user, illusory – but
court then looked at things which would mean that the owner’s use was not illusory.
I.e. they could plant a tree etc. I.e. this is also along the lines of the Moncreiff
approach. This is enough to not make it illusory. The Law Commission recommended
that even if the SO can’t make reasonable use of the land, that it should still be
allowed to be an easement. So, there is a clear movement towards the Moncrieff
approach.
