#16448 - Easements - Property law

Easements (Part 8 Land & Conveyance Law Reform Act 2009)

EXAM FOCUS

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.

SEPT 14: QUESTION EIGHT

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.

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 1^st December 2009 (with the exception of s 132 which was commenced on 28^th 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.

FOUR POSITIVE REQUIREMENTS OF AN EASEMENT:

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
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 3^rd 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.

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...