Land Law Seminar 3- Easements (15/02/18)
1) Test for Easements
Re Ellenborough Park- 4 characteristics for an Easement;
i. Dominant (gets) and servient (giver) tenements required (this is the land)
ii. Must accommodate (be useful) to the dominant tenement (connected to the land)
o Issues of proximity (Bailey v Stephens) and nature
iii. Dominant and servient owners must be different (diversity of
ownership/occupation)
iv. Must be capable of forming the subject of a grant (example of a ‘good view’)
o 6 factors from case law have to be satisfied for this (capable grantor and
grantee, capable of definition, no restriction on servient land, no expenditure
of money required (Rance v Elvin, Moncreiff v Jackson, Regency Villas
Title Ltd v Diamond resorts), no obligation of servient owner to
repair/maintain, not too excessive/extensive (Copeland v Greenhalf, Wright
v Macadam, London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd,
Mulvaney v Gough) including the ouster principle (Copland, Batchelor v
Marlow, London and Blenheim Estates Ltd, Moncreiff, Virdi v Chana Kettel
v Bloomfold) less certain in Hair v Gilman)
2) Validity of creation- just because something is capable doesn’t mean it is an easement
Express creation
i. Express reservation (dominant reserving for themselves)
o By deed (s52 LPA 1925, s1 LPA 1989 ) and registered (s27 LRA 2002)
ii. Express grant (dominant granting for the servient)
o Granting to another, such as rights of way
o S.62 LPA1925
Implied creation
i. Implied reservation
o Necessity (quite a strict test) (Titchmarsh v Royston Water Co, Manjang v
Drameh (gives criteria; common owner of two plots, access to public
highway only (if there is another ‘inconvenient’ route it wouldn’t meet
necessity) over the other plot, no specific grant or reservation of a right),
Nickerson v Barraclough) or Implied intention (Peckham v Ellison)
o In problem Q example- if had common intention for use as a farm and could
only access through her land; test of necessity would be used on the common
intention (when otherwise it may not have been a necessity)
ii. Implied grant
o Necessity, mutual (or implied) intention or the rule in Wheeldon v Burrows
(and s.62 LPA)
Presumed creation (prescription)- right capable of being an easement AND nature of
use requirements
i. Common law- from time immemorial (1189). This is rarely used
ii. Lost modern grant- creates a legal fiction from continuous enjoyment for 20 years
(presumption that is an easement which has been ‘lost’) (Dalton v Angus, Bakewell
Management Ltd v Brandwood)
iii. Statutory prescription- easements of light (use of light for 20 years with no
interruption) and ‘other easements’ (20 years uninterrupted unless used with stealth
or force/there was written consent/inability to grant easement, 40 years
uninterrupted unless same conditions except stealth/force)
3) Wheeldon v Burrows- sale of part tenement, quasi-easements pass as follows;
An implied grant- quasi-dominant part must be sold first
Quasi-easement must be in continuous and apparent use
Right must be necessary for the reasonable enjoyment of the land
4) S.62 LPA 1925 rule
1) Test for Easements
Re Ellenborough Park- 4 characteristics for an Easement;
i. Dominant (gets) and servient (giver) tenements required (this is the land)
ii. Must accommodate (be useful) to the dominant tenement (connected to the land)
o Issues of proximity (Bailey v Stephens) and nature
iii. Dominant and servient owners must be different (diversity of
ownership/occupation)
iv. Must be capable of forming the subject of a grant (example of a ‘good view’)
o 6 factors from case law have to be satisfied for this (capable grantor and
grantee, capable of definition, no restriction on servient land, no expenditure
of money required (Rance v Elvin, Moncreiff v Jackson, Regency Villas
Title Ltd v Diamond resorts), no obligation of servient owner to
repair/maintain, not too excessive/extensive (Copeland v Greenhalf, Wright
v Macadam, London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd,
Mulvaney v Gough) including the ouster principle (Copland, Batchelor v
Marlow, London and Blenheim Estates Ltd, Moncreiff, Virdi v Chana Kettel
v Bloomfold) less certain in Hair v Gilman)
2) Validity of creation- just because something is capable doesn’t mean it is an easement
Express creation
i. Express reservation (dominant reserving for themselves)
o By deed (s52 LPA 1925, s1 LPA 1989 ) and registered (s27 LRA 2002)
ii. Express grant (dominant granting for the servient)
o Granting to another, such as rights of way
o S.62 LPA1925
Implied creation
i. Implied reservation
o Necessity (quite a strict test) (Titchmarsh v Royston Water Co, Manjang v
Drameh (gives criteria; common owner of two plots, access to public
highway only (if there is another ‘inconvenient’ route it wouldn’t meet
necessity) over the other plot, no specific grant or reservation of a right),
Nickerson v Barraclough) or Implied intention (Peckham v Ellison)
o In problem Q example- if had common intention for use as a farm and could
only access through her land; test of necessity would be used on the common
intention (when otherwise it may not have been a necessity)
ii. Implied grant
o Necessity, mutual (or implied) intention or the rule in Wheeldon v Burrows
(and s.62 LPA)
Presumed creation (prescription)- right capable of being an easement AND nature of
use requirements
i. Common law- from time immemorial (1189). This is rarely used
ii. Lost modern grant- creates a legal fiction from continuous enjoyment for 20 years
(presumption that is an easement which has been ‘lost’) (Dalton v Angus, Bakewell
Management Ltd v Brandwood)
iii. Statutory prescription- easements of light (use of light for 20 years with no
interruption) and ‘other easements’ (20 years uninterrupted unless used with stealth
or force/there was written consent/inability to grant easement, 40 years
uninterrupted unless same conditions except stealth/force)
3) Wheeldon v Burrows- sale of part tenement, quasi-easements pass as follows;
An implied grant- quasi-dominant part must be sold first
Quasi-easement must be in continuous and apparent use
Right must be necessary for the reasonable enjoyment of the land
4) S.62 LPA 1925 rule
