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Easements Notes

Irish BCL Notes > Property law Notes

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Easements (Part 8 Land & Conveyance Law Reform Act 2009)
Spring 18: Difference between easement and profit a prendre and a problem q on easement by prescription.
March 2013- Problem Q- Angela given new lease to Jacinta of a storeroom under Angelas home. New pipes needed for opening of a cage. Jactina has hired a co to install. Does Jacinta have the right to do this?
Oct 13: Problem Q in relation to drive way. Extension onto house, But sold field to developer whose plans for development included wall which would block the view and considerably reduce amount of light received throught he kitchen window.
March 14: essay : This question concerned the creation and effect of rights of way and the right to light and to support, making possible suggestions for reform. This would require an overview of the law concerning the development and effect of easements according to the test set out in Re Ellen borough Park using supporting case law which are specifically relevant to rights of way, light and support.
April 14: Easements are usually defined according to the presence of four key characteristics. In your opinion,
does this categorisation provide a useful or appropriate analysis of easements? Discuss with reference to relevant legal authority.
In 1980, Jenny built a small house on a site, much of which was bogland, adjacent to Fred's land. The conservatory of the house had a large bay window that overlooked Fred's land which was a large field with some really beautiful flowers and a stream at the end of it. The only access route to the nearby road is through Fred's field, because the driveway which Jenny built on her own land is almost always flooded during the year. Jenny has therefore continually used the field since 1982. This year, Fred has sold the field to a developer whose plans for development include the erection of a 12 foot high boundary wall. The wall will cut off the field access to the road and it will considerably reduce the amount of light received through the bay window and destroy Jenny's beautiful view.
Advise Jenny.
September 15:
Billy has issued a new lease to Roger of premises which lies in the basement of a building. The basement lies below and adjacent to property retained by Billy. The lease agreement specifically states that the basement premises will be used for a Mexican restaurant. However, upon inspection of the new establishment, the local Health Authority has stated that the sewerage system which is in place is wholly inadequate and all the piping will have to be replaced. Roger has acted accordingly and hired a company to install the new piping which runs all the way through the property that has been retained by the landlord. Billy immediately questions Roger's right to do this and now seeks your advice.
1 Discuss with reference to relevant case law.

An easement is a proprietary right over one piece of land (servient tenement) for the benefit of another piece of land
(dominant tenement) by which the dominant owner acquires the right to use the land of the servient owner either by using the land himself (a positive easement) or by requiring the servient owner to not use the land in a certain way himself (a negative easement). Radicalised by 2009 Act.
Easements can be positive or negative. Positive are those that allow a 3 rd party to act on the land of another for the benefit of their own land while negative easements are those that prevent a landowner from acting on his own property in the manner prescribed.
This previously complex area of the law has now been updated and in many cases replaced by the Land and
Conveyancing Law Reform Act 2009 which became effective on 1st December 2009 (with the exception of s 132 which was commenced on 28th of February 2010).
Part 8, Chapter 1 of the Act concerns easements and profits à prendre.
s. 33 as a user of right, without force, without secrecy and without oral or written permission of the servient landowner.
To succeed in a claim for an easement, the dominant land Must show a minimum of 12 years against a private land owner or 30 against State authority.
Must show relevant user period without interruption. An interruption is only effective if it lasts for a continuous period of one year.
A claim for legal title to an easement by prescription is not obtained unless and until a court order granting same is obtained and registered in accordance with the systems of registering.
Failing to register= equitable easement.
The law is modified in relation to extinguishment of easements. It introduces a new presumption which only applies to easements acquired by prescription or implication. This new presumption is that a 12 year continuous period of non use will extinguish easement.
s. 40 abolishes the rule in Wheeldon v Burrows and replaces it by stating the the easement must be necessary to the reasonable enjoyment of the part of the land disposed of.
Bland describes an easement as "a right exercised for the benefit of land by obliging another owner of land to suffer use of his land or refrain from using his land in a particular way." It is a right annexed to land either to use (positive)
or less usually, to restrict the use of (negative) the land of another.
The landowner's own land, called the dominant tenement, should be benefitted by the servient tenement, that is, the land which is subject to an easement. Easements do not automatically exist over land, they must be created at law through acquisition, usually by way of grant or reservation. As these rights are proprietary they are materially different from licences, which is a mere permission. They exist in law or in equity and can exist over any of the freehold estates.
4 Characteristics set out in Re Ellenborough Park - De londras notes that this definition aligns well with how
Irish law saw and continues to see easements.
1) There must be a dominant and a servient tenement 2) The easement must accommodate the dominant tenement

2 3) The dominant and servient owners must be different people 4) The right must be capable of forming the subject matter of a grant
These are the positive requirements and there are three negative requirements:

Is the right conferred too wide or too vague?
Is the right conferred inconsistent with the proprietorship or Possession of the alleged servient owners?
Is it a mere recreational right with no utility or benefit?

1. There must be a Dominant and Servient Tenement
Easements are appurtenant rights- meaning that they exit between two pieces of land to which they are attached. The pieces of land do not have to be directly beside each other, but they do need to be sufficiently proximate to each other to enable the accommodation of the dominant land by the servient land. Cannot exist in gross- Alfred Beckett Ltd v
Lyons, Whipp v Mackey.

Latimer v Official Coop This concerned a terrace of 3 houses, in which one of the end houses had been demolished.
The demolition of this house caused the middle house to detach itself from the 3 rd house. Even though the 2 end houses had not been attached, the court of common pleas found that the 1 st house owed a duty of support to the 3rd house in the terrace. Thus an easement of support existed between the properties even though they weren't physically attached to one another.

It must be exercised over a particular and identifiable area of land that we call the serviant tenement. This is well demonstrated by Woodman v Pwllbach- in which it was held that the right to scatter coal dust over an indefinite area could not be an easement: the servient tenement was not defined.. (De londras case)
Clapham v Edwards - general use of advertising on wall enjoining filling station did not benefit the filling station and therefore there was no dominant tenement.

2. An Easement must accommodate the Dominant Tenement- Scott v Goulding Properties.
An easement must make the use of the dominant tenement more convenient. Difficult to decide when a particular right accommodates a tenement.
Conveying a personal benefit to the landowner will not suffice- Hill v Tupper
De londras notes: Whether or not something accommodates a piece of land is a question of construction and depends to a large extent on the circumstances.
Re Ellenborough Park Each house to receive full enjoyment of said park. the ct found that a right to use a "pleasure garden" accommodated residential houses in the same way as garden usage would and therefor an easement existed.
Controversial as administering a 'right to walk around' would the same apply for factories?
Hill v Tupper P held exclusive right to rent pleasure boats on a canal, he sued D for trespass but it was held that a right to hire boats was a commercial monopoly, not capable of existing as an easement.

3. The Dominant and Servient Tenements must not be owned and occupied by the same person
You may have the same owner of the two pieces of land and different occupants Flynn v Hart , Roe v Siddons.

4. The Right claimed must be Capable of Forming the Subject Matter of a Grant.
An easement must be capable of being granted by means of a deed/in written form.

There are 2 main requirements in this regard:

1. that there is someone who has legal capacity to grant an easement;

2. and the easement must be capable of being defined with relative certainty.
3 Gaw v CIE Right of way recognised
Dalton v Angus. A general and widely recognised right to view was too vague to form the subject matter of a grant.

An easement cannot overly infringe on servient owners' rights or contravene public policy and cannot be mere recreation without utility. Copeland v Greenhalf; An easement cannot go so far as to make the servient owner's rights illusory, it cannot overly infringe on the proprietary right of the servient owner.
Copeland owned an orchard and adjoining house which was accessed by a trip of land. Greenhalf was a mechanic whos premises was opposite copelands land. Greenhalf was in habit of parking vehicles on the strip of land. Copeland litigated to prevent such activity, greenhalf claimed he had an easement to do so. Court held that the right was too extensive to be defined as an easement. Upjohn LJ: " I think the right claim goes wholly outside of any normal idea of an easement"
A right is not an easement if it is repugnant to the proprietorship or possession of the servient tenement or if it results in the exclusion of the servient owner or occupier.
Redmond v Hayes the Irish courts have not shown particular reluctance to recognise many easements that deprive the servient owner of the use of a reasonable amount of his lands, such as rights of depositing manure and lime.
Middleton v Clarence: the court held that " the right of throwing the spoil arising from the working of quarry on adjoining lands" was an easement.
Common Easements (handy to have I would only learn those that have come up on exams)
In Dye v Hay, Lord St Leonards accepted that societal change will give rise to the recognition of new rights as easements.

1. Right of Way
De londras: a right of way is a right to cross and re cross property between 2 clearly defined points. -
Donnelly v Adams
Whether or not a right of way is limited to crossing and re crossing by foot or can extend to vehicle access is entirely dependent on terms of easement- Orwell park v Henihan
If a right of way does include vehicle access, it includes the right to stop or park but not to stop for an indefinite amount of time - Bulstrode v Lambert
These right may be either general, in the sense that it can be used any time in any way by the dominant owner,
or limited, in the sense that some restriction binds the dominant owner, e.g. at the time or mode of user. It can be by foot or by vehicular access. As a general rule, any works in the nature of construction, or repairs to the way have to be executed by the dominant owner, i.e. the grantee, but this is subject to any agreement made by the original parties.
Ackroyd v Smith the grant of a right of way "for all purposes" to the tenant of an estate and his successors in title permitted the right to be used for purposes not necessarily connected with that estate and so it failed to create an easement.
Griffin v Keane the SO can not alter with his land in a way that prevents DO using the land.
Gaw v CIE. Held that the benefit of a covenant by the grantors of a right of way ran with the easement so as to enable a successor in title of the grantee to obtain a mandatory injunction against the statutory successors of the grantors requiring them to execute repairs on the footpath relating to the right of way.
This may be achieved by putting an access point in the wall, rather than preventing its erection altogether.
The servient owner is obliged to refrain from changing his land in such a manner as to make the right of way unusable= Griffin v Keane


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