#5856 - Easements - Irish Land Law

Easements

Easements must satisfy four tests

• There must a dominant (see Whipp v Mackey) and servient tenement

• The land over which an easement is exercisable is known as the servient tenement.

• The land which is benefited by the right and to which it is annexed is the dominant tenement.

• The identity of the dominant tenement must be known at the time when the easement is created

• London & Blenheim Estates v Ladbroke Retail Park (CA)

• The owner of land conveyed part of it to the plaintiff through a conveyance which also purported to grant easements over the part which was retained for the benefit of such other land as might be subsequently acquired by the plaintiff and nominated by it in a notice to the owner of the retained portion.

• This was not an interest capable of binding land.

• The easement must accommodate the dominant tenement

• Hill v Tupper

• A lessee of land adjoining a canal was given the sole and exclusive right to hire out pleasure boats on the canal.

• When the defendant began to put pleasure boats on the canal as well the plaintiff sued him for trespass.

• It was held that the right in this case was not an easement as it benefitted the plaintiff and not his land.

• Moody v Steggles

• The right to put a sign on an adjoining premises could exist as an easement accommodating a public house.

• The dominant and servient tenements must not be both owned and occupied by the same person

• A person cannot have an easement over his own land because anything he does on that land is done in his capacity as owner and not as the holder of a lesser right (Sovmots Investments v Secretary of State for the Environment – HoL)

• The right must be capable of forming the subject-matter of a grant

• A right cannot be granted as an easement uness it is defined with a degree of precision

• Regis Property Co v Redman - Supply of hot water to a tenant was a service and not an easement

• Crow v Wood – fencing to stop cattle straying is an easement

• Newman v Jones – right to park anywhere in a given area is an easement

• Bland v Mosely – Right to a view not an easement

• Cochrane v Verner – A hedge which sheltered cattle from weather was not an easement.

Rights Distinct from Easement

• Natural Rights at common law

• Backhouse v Bonomi

• The right of a person to the support of the land immediately around his house is not an easement but is the ordinary right of enjoyment of property.

• Dalton v Angus

• The support of the land around a house is part of an owner's right to the enjoyment of his land and not an easement.

• However the right to the support of buildings, not being on the land in its natural state, is an easement as it must be acquired by grant.

• Public Rights of Way

• Carroll v Sheridan – a path which had been originally constructed for the users of a number of different lands and used as a public right of way since time immemorial was a public right of way – not an easement as there is no dominant tenement.

• Local Customary Rights

Acquisition of Easements

• By Statute

• Express Grant – usually arises where part of the grantor's land is transferred along with an easement over the remaining land. As the grantor chooses the words, the grant construed strictly against the grantor.

• Express Reservation – it is not possible to create and reserve an easement in the same conveyance

• Execution of the conveyance by the purchaser operating as a regrant

• The same deed can contain a grant of the land to the purchaser and a grant of an easement back to the vendor.

• Combined effect of the Statute of Uses (Ireland) 1634 and s. 62 (1) Conveyancing Act 1881.

• The land is conveyed to a third party who holds it so that the vendor has the use of the easement and subject to this, the purchaser has the use of the land.

• This was unavailable until the 1881 Act provided that uses granted in respect of easements would vest the easement in the person to whose use it was conveyed.

• Implied Reservation

• Easements of Necessity

• A right of way will be implied where no other entry or exit to the land is reserved – only an absence of a means of access and not mere inconvenience will have this effect.

• Holmes v Goring (CP) – an easement of necessity will cease to exist if the owner acquires another means of access.

• Easements of common intention

• e.g. disposal of adjoining house will usually contain an easement of support.

• Implied Grant

• Easements of Necessity

• Nickerson v Barraclough – easements of necessity are implied from the intentions of the parties so a grant excluding such an easement will be given effect. However there was a right of way in this case, albeit one limited to access for agricultural and recreational activities.

• Dwyer Nolan Developments v Kingscroft Developments (HC)

• The plaintiff sought an easement of necessity

• The court noted that both parties were developers and were aware that the land was to be developed – the plaintiff is entitled to a right of way.

• Irish law allows the inference of a right of way most appropriate to the business which the landowner conducts on his land.

• Easements of Common Intention

• Latimer v Official Co-operative Society – right of support

• Wong v Beaumont Properties Trust (CA)

• The plaintiffs were the tenants of the defendants and covenanted to carry out a business as a restaraunt on the premises while minimising odours etc, which they were also required to do by statute.

• This required the installation of a ventilation system through the defendant's property, for which they refused permission.

• It was found that the easement (ventilation) was one of necessity.

• Non-Derogation from Grant

• If land is granted and at the time of disposition the grantor was aware that the grantee intended to use the land for a particular purpose, the grantor is precluded from doing anything which he should have reasonably anticipate would interfere with that use.

• Connell v O'Malley (HC) – the plaintiff purchased a site with a view to building houses over it and after disposition, the defendant obstructed a laneway which was vital to the development – the court awarded the plaintiff an injunction, as the defendant had rendered the plaintiff's land less fit for the purpose for which it had been intended and the defendant had been aware.

• Lyme Valley Squash Club v Newcastle-under-Lyme BC (Ch)

• The plaintiff's purchased land from the defendants for the purposes of constructing buildings for a squash club

• The defendants retained land on three sides of the plaintiff's land and sought to develop the land for retail.

• The plaintiff's successfully challenged the development – the court found that it was the mutual intention of the parties that light be available for their windows.

• The rule in Wheeldon v Burrows

• This rule recognises that certain facilities that somebody uses on their own land (e.g. a particular track leading to their house), while not constituting an easement, forms a quasi-easement whose disposition is implied into any conveyances of the land.

• To be a quasi-easement, the facility must A) be continuous and apparent, B) be necessary for the reasonable enjoyment of the land and C) have been used by the grantor prior to and at the time of the grant for the benefit of the part granted.

• s. 6 (1) Conveyancing Act 1881

• When the dominant tenement is disposed of the easement will pass along with it even though the right is not mentioned in the deed of conveyance.

• International Tea Stores v Hobbs

• A lessee who had previously been permitted to use a path over the lessor's land, gained a freehold interest in the right of way upon purchasing the freehold.

• Wright v Macadam (CA)

• The right to use a shed for storing coal became an easement when a lease of rooms in a house was granted – the right in question must be capable of forming an easement for s.6 to have such an effect.

• Long v Gowlett

• s.6 will not elevate a right into an easement where the right was previously exercised by the grantor in his capacity as owner of the land – it is directed only at entitlements held as against the land of another.

• Sovmots Investments v Sec of State for the Environment - (HoL) upheld the rule in Long v Gowlett

• Redfont v Custom House Management (HC – upheld the rule in Long v Gowlett)

• Broomfield v Williams

• Easements of light are an exception to the rule in Long v Gowlett

• Borman v Griffith

• Overlap between the rule in Wheeldon v Burrows and s.6

• Estoppel

• Annally Hotel v Bergin (HC)

• Where there is an agreement, however informal, to allow a right of light and, on faith of such agreement, the person later claiming the easement, proceeds, without a grant, to rely on that agreement by constructing a building requiring light and the other person allows this to happen without complaint he will not be permitted to deny the right.

• Ives Investment v High (CA)

• The defendants communicated to the plaintiff's predecessors that they could build apartments in such a way that the foundations encroached on the defendants' land and had a right of way across them – the defendants then took no action while the apartments were completed.

• This gave the plaintiff an equitable interest in the easements

• Crabb v Arun DC – see Contract, Shield not a Sword

Prescription

• Where a person and his predecessors have acted in a manner consistent with a particular legal right for many years, the courts can presume that at some time in the past a formal grant of this right was made by the owner of the land over which it is exercised.

• Prerequisites of Prescription

• User of...