EASEMENT 3 – DISQUALIFYING FACTORS
POSSESION, PAYMENT, PERMISSION
1. MUST NOT AMOUNT TO EXCLUSIVE POSSESSION
o In essence limited rights
o It is an INTEREST not an estate in land – dominant owner’s right must not
be too intense.
o Where owner cannot use serviant land AT ALL – clearly easement claim will
fail.
▪ TWO TESTS:
▪ 1. Batchelor v Marlow test – the OUSTER principle
▪ ‘Left with no reasonable use of the land’ (parking 6 cars weekdays
8.30 -6pm)
▪ 2. Moncrieff v Jamieson Test – Possession and control
▪ More flexible test – rejected reasonable use test and and applied
the possession and control test – if possession and control still with
owner then easement is ok.
- Should still use reasonable use test – is binding, but law is changing slightlt
favour easements.
2. ADDITIONAL EXPENDITURE
▪ A positive obligation is inconsistent with the concept of an easement.
▪ Not required for servient owner to carry out maintenance or repairs to
allow easement to be used.
▪ BUT must allow dominant owner onto land to do it themselves, at their
own expense (Jones v Pritchard)
▪ Hot water supply = spending money = no easement. (Regis Property v
Redman)
▪ Rance v Elvin = answer was water can flow through but dominant owner
must pay bill. (in quasi contract)
3. NO PERMISSION
▪ Express permission almost inevitably given when right is first used.
▪ However, afterwards, dominant owner must exercise it as of right
▪ Enjoying benefit as a right is essence of easement
▪ If dominant owner asks for permission every time it can’t be an easement.
▪ Green v Ashco Horticultural – always moved van if asked to – not
easement.
POSSESION, PAYMENT, PERMISSION
1. MUST NOT AMOUNT TO EXCLUSIVE POSSESSION
o In essence limited rights
o It is an INTEREST not an estate in land – dominant owner’s right must not
be too intense.
o Where owner cannot use serviant land AT ALL – clearly easement claim will
fail.
▪ TWO TESTS:
▪ 1. Batchelor v Marlow test – the OUSTER principle
▪ ‘Left with no reasonable use of the land’ (parking 6 cars weekdays
8.30 -6pm)
▪ 2. Moncrieff v Jamieson Test – Possession and control
▪ More flexible test – rejected reasonable use test and and applied
the possession and control test – if possession and control still with
owner then easement is ok.
- Should still use reasonable use test – is binding, but law is changing slightlt
favour easements.
2. ADDITIONAL EXPENDITURE
▪ A positive obligation is inconsistent with the concept of an easement.
▪ Not required for servient owner to carry out maintenance or repairs to
allow easement to be used.
▪ BUT must allow dominant owner onto land to do it themselves, at their
own expense (Jones v Pritchard)
▪ Hot water supply = spending money = no easement. (Regis Property v
Redman)
▪ Rance v Elvin = answer was water can flow through but dominant owner
must pay bill. (in quasi contract)
3. NO PERMISSION
▪ Express permission almost inevitably given when right is first used.
▪ However, afterwards, dominant owner must exercise it as of right
▪ Enjoying benefit as a right is essence of easement
▪ If dominant owner asks for permission every time it can’t be an easement.
▪ Green v Ashco Horticultural – always moved van if asked to – not
easement.
