Easements

EASEMENTS

Incorporeal interest in real property capable of being in herited, not an estate however, not a ‘bundle of rights’ rleating to land, just one rigght

Equitable easement possible

Does not include right to possess

TYPES OF INCORPOREAL HERIDITAMENTS

Easements - right to use someone’s land in a particular way for beneift of yur land e.g. right of way, usually to get to A to B

Profits á prendre

Right to take osmething from someone else’s land e.g. fishing, hunting rights

Dominant tenement (beneficiary) servient tenement (provider)

Positive easement e.g. right of way

Negative easement e.g. right to light

Re Ellenborough Park

Rectangular plot of land in Somerset, owned by 2 men who created park, retained ownership of park in trust, sold houses to different purchasers, and granted them right of ‘full enjoyment of the pleasure land in front of the square, subject to costs of keeping the pleasure ground in sound order’

Private park for benefit of residents

4 elements of easement outlined

1. Must be d and s tgenatn
2. Must accommodate d
3. Must be different persons
4. Must be able to form subject matter of grant

1. Whipp v Mackey - No dominant tenement, personal right for benefit of defendant

Easement can’t be held “in gross” - i.e. by an individual

2. Moody v Steggles - entitlement to place sign pointing to pub on servient tenement, dominant tenement was being used as pub, sign makes the land more valuable, improves the land of the odminant tenement, therefore was an easement

Hill v Tupper

The exclusive right to use the canal was deemed to purely benefit the plaintiff’s business interests and not his ;and

3. If you own servient tenement, don’t need permission to use it

4. Must have grantor/grantee

Must not be vague

Must not impose burden on servient owner (Phipps v Peers - 2 adjoining houses, 1 demoliished, remainijng house thus exposed to the weather, damage caused by rain etc, dominant tenement siad there was an easement to protect from weather, rejected  by CoA as this was too onerous, feudal easement to put up fences existed however)

Must not oust servient owner

Easements must be recognised by law, however some new ones by necessity have evolved

Parking (Copeland v Greenhalf - was held to be such an excessive parking right (5 large trucks) that it seved to effectively oust the servient)

Batchelor v Marlow - set boundary for parking easements, capable of being easemnet but in this case was too excessive

Moncrieff v Jameson - was a reasonable use of parking enough to allow servient owner maintian control, distinction between sole user of land and distincrtive possesion, servient owner could retain ccontrol of land whilst allowing vehicles to be parked on it, this excluded others from using that spot but if this was controlled by servient owner not necessarily inconsistent woithg ownersghip rihgts

Redfont Ltd v Custom House - right of parking ancillary to right of way

AGS v Madison - SC said an easement of parking was possible, need to balance benefit of expoliting dominant land with burden placed on servient land, right of parking may benefit adjoining property nearby but this dfoe not equate to right ot use any spparking space anywher in a car park, not an absolutejright to use ladnd entirely, could be controlled

Hunter v Canary Wharf - construction of skyscrapers blocked TV signal, could there be easement to receive televison signal, HoL were reluctnat to do so as this would be a negative easement, restriction ons servienet bowner building anything that would blokc TV signal, HoL discussed conflict of rightsw between servient owner to build on their land and right of dominant tenenment, could not find to this right strong eoungh to prohibit owner’s right to build

Post-script: Regency Villas v Diamond Resorts

Ellenborough Park upheld, argument that using a servient tenement in recreational sense was not truly functional as it doesn’t have anything to do with dominant tenement was rejected in Ellenborough and equally rejected here

In this case large country estate in south England on which series of time-share apartments developed in 80s, country club with tennis courts etc was developed, apartment owners had the right to use these amenities free of charge, practical difficulty was that 1981 didn’t oblige them to maintain the upkeep of the facilities, servient owner started to charge them therefore to use them, they paid these charges for a while but ultimately claimed they had the benefit of an easement, appellant argued that nature of this easement went far beyond precedent of Ellenborough Park, too onerous for servient owner to maintain facilities

Lord Briggs found that the second requirement of an easement (must accommodate the dominant tenement) was met as sporting and leisure facilities are ancillary to a time-share apartment and contribute to the functioning thereof

Held that whether fourth requirement is met (especially that the servient owner can not be ousted and that his duties should be ‘mere passivity’) will always be a question of fact depending on each case; in this case the fact that the dominant owners could have ‘stepped in’ and maintained facilities if servient owners failed to do so meant that positive action was not required in respect of servient owners, job could be done for them

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