Land Law Semester 2 2003 EASEMENTS A Introduction The practical importance of easements Incorporeal heridaments: section 205(ix) LPA

1925 Can be legal interests: section 1(2) LPA 1925 if they are granted for period equivalent for a fee simple estate or for a term of years. Needs two pieces of land. Can be either positive or negative: -A may claim a right to walk over B's land-a positive easement. -A may claim a right to light over Bs land- a negative easement B The essentials of an easement Re Ellenborough Park [1956] Ch 131 1 There must be a "dominant and a servient " tenement : Cannot be an easement in gross 2 The right must "accommodate" the dominant tenement. a) The first dominant and servient tenement must be sufficiently close. Pugh v Savage [1970] 2 QB 373 the plots were separated by intervening field and road. b) the right must benefit land. Moody v Steggles (1879) 12 Ch D 261 can benefit a business. cf Clapham and Edwards [1938] 2 All ER 507 must be limited to advertising business on dominant tenement. Re Ellenborough Park [1956] Ch 131 right to roam ius spatiandi can be easement. 3. Dominant and servient tenement must not be owned and occupied by the same person. Exceptions: a) where 2 plots owned by one person but occupied by another b) quasi easements. 4 The right must capable of forming subject matter of a grant a) The right must be sufficiently definite. Aldred's Case (1610) 9 Co Rep 57 no right to a view -" The law does not give action for such things of delight." Webb v Bird (1862) 13 CB (NS) 841 flow of air generally across land not easement But can be through a defined channel: Bass v Gregory (1890) 25 QBD 481 Or to a defined aperture: Cable v Bryant [1908] 1 Ch 259.

Can be an easement of light through a defined aperture ie a window but not to land building generally. Hunter v Canary Wharf Ltd [1997] 2 All ER 426 (obiter), no easement to receive uninterrupted television reception. Note: A grant of planning permission does not override private law rights. b) The right must be in the general nature of an easement. List not closed Compare Keppel v. Bailey (1843) 2 My & K 517: It must not be supposed that incidents of a novel kind can be devised and attached to property at the fancy and caprice of any owner.' and Dyce v. Lady James Hay (1852) 1 Macq 305: 'The category of servitudes and easements alter and expand with the changes that take place in the circumstances of mankind.' Examples of accepted easements: Light, air, right to roam, storage, car parking, support, drainage, to use lavatory. Negative easements Court reluctant to allow new negative easements Phipps v Pears [1965] 1 QB 76: X owned 2 houses next to each other. X demolished one house and built new house A not bonded to house B but so close that house A was never weather proofed. House A was subsequently sold to the claimant and house B to the defendant who demolished it, leaving house A exposed to the elements. Claimant claimed easement of protection from the weather against defendant. Held that no such easement and the court would not create one. Class of negative easements closed? Effect of decision now limited? see below. A right to support Dalton v Angus (1881) 6 App Cas 773 Positive obligations Right which imposes positive obligation on the servient tenement will not be an easement. But where the easement claimed is one of support, there may be a positive duty on the servient owner. The property position: Bond v Nottingham Corporation [1956] 2 QB: The owner of servient land is under no obligation to repair the part of his building which provides support for his neighbour. He can let it fall into decay. If he does so and support is removed the owner of the dominant land has no cause for complaint. On the other hand the owner of the dominant land is not bound to sit by and watch the gradual deterioration of the support constituted by his neighbour's building. He is passage,

entitled to enter to repair and take the necessary steps to ensure that the support continues by effecting repairs and so forth to the part of the building which gives the support. What the owner of the servient land is not entitled to do is, by an act of his own, to remove the support without providing an equivalent. BUT A remedy in tort? Bradburn v Lindsay [1983] 2 All ER 408 Where one of two semi detached properties demolished, servient owner liable in nuisance/negligence for damage to party wall and spread of dry rot. Holbeck Hall Hotel v Scarborough [2000] QB 836. Rees v Skerrett [2001] 1 WLR 1541: where the servient owner removes support he must take steps to protect the exposed property following Defendant owned a terraced house which he demolished exposing the party wall between this and the next house. Held that a right of support extends not only to the protection afforded by the weight of structure but also to the effect of wind suction. May also be liability under the Occupiers Liability Act 1984. Occupation of servient land Copeland v Greenhalf [1952] Ch 488 the right claimed to store vehicles for repair on path through P's land not an easement but claim to beneficial joint user. Wright v Mcadam [1949] 2 KB 744 a right to use a coal shed an easement but compare Grigsby v Melville [1972] 1 WLR 1355 right to store article in a cellar not easement. Probably a right to park can be an easement: London and Blenheim EstatesLtd v Ladbroke Retail Parks Ltd [1993] 1 All ER 307 (obiter) can be easement to park provided it does not amount to exclusive use to exclusion of servient owner. Always a matter of degree: Batchelor v Marlow [2003] 1 WLR 764 Saeed v Plustrade Ltd [2002] 25 EG 154. C Acquisition Express or implied grant or reservation. Can be legal: section 1(2) LPA 1925 but must be for a period equivalent to fee simple or term of years. Or equitable 1) Express 2) Implied

Implied grant or reservation. NB implied easement s take effect as legal easements a) Necessity A narrow class: confined to cases where land is locked in by other land. Nickerson v Barraclough, [1981] 2 WLR 773 CA: court may imply an intention that land be beneficially used. b) Easements attached to a grant c) Common intention A claim that the land cannot be used for the purpose for which it was granted without an easement. Pwllbach Colliery v Woodman [1915] AC 634 Land owned by A: he leased part to colliery and later leased another part to Woodman a butcher and owner of abattoir. The original action was by Woodman who complained in nuisance against Collierys activities (screening and washing coal) which spreading dust over Woodman's sausage-making factory and abattoir. Counterclaim by Colliery this it had an implied easement to spread coal dust. Claim failed. In principle there cannot be an easement to spread coal dust but the rule in these cases was expressed by Lord Parker: 'The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. But it is essential for this purpose that the parties should intend that the subject of the grant should be used in some definite and particular manner. It is not enough that the subject of the grant should be intended to be used in a manner which may or may not involve this definite and particular purpose.' p647. The Court looks for common intention, not to graan nt easement, but with regard to the use to which property is to be put. Basis is the doctrine of non-derogation from grant. A reservation may be implied under this rule. Examples: Wong v Beaumont Property Trust [1965] 1 BE 173: Basement leased to W as Chinese Restaurant which needed a ventilation unit. Landlord refused permission for unit on his retained part. CA held that W had an implied easement based on the common intention of the parties as to the purpose of the grant.

Stafford v Lee (1992) 65 P & CR 172: In 1955 area of woodland conveyed by X, defendant's predecessor in title to Y, claimants predecessor in title, with frontage into private road retained by X. The only express grant was of a way on foot. Land passed to parties. Claimant wanted to build house on the plot and claimed a right of way over private road for all purposes over Ds land. Held clear from the 1955 conveyance that land sold as a building plot and easement for all purposes implied. d) Quasi easements: the Rule in Wheeldon v Burrows (1879) 12 Ch D 31: 'On the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which of course I mean quasi-easements) or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant, used by the owners of the entirety for the benefit of the part granted.' per Thesiger L J. Continuous and apparent Necessary to the reasonable enjoyment of the property Wheeler v Saunders [1995] 2 All ER 697 Two means of access to land, one over D's land, the other direct from the public highway Held this was not necessary for reasonable enjoyment because there was another access. As used and enjoyed at the time of the conveyance for the benefit of the tenement Sovmots Investments Ltd. v. S of S for the Environment [1979] AC 144 Large complex of house shops, maisonettes known as Centre Point. Camden LBC sought Compulsory Purchase Order for maisonettes at the top of the building. Did title vested in CLB following the CPO carry with it right to use the ancillary services which were necessary for the use of the maisonettes. Held rights not used and enjoyed at the time of the conveyance. A reservation will not be implied under this rule. e) Section 62 LPA 1925 A conveyance of land shall be deemed to include and shall by operation of this Act operate to convey, with the land, all....., liberties, easements, rights and advantages whatsoever, appertaining to or reputed to appertain to the land or any part thereof, or, at the time of the conveyance ... enjoyed with .... the land or any part thereof. Can turn rights which prior to the conveyance were merely permissive rights into full easements . Needs to be prior diversity of ownership or occupation.

Sovmots Investments Ltd. v. S of S for the Environment [1979] AC 144 . Payne v Inwood (1997) 74 P &CR 42 International Teas stores v Hobbs [1903] 2 Ch 165: H owned 2 adjoining houses. He occupied one and leased the other to ITS which used it as a house for the manager and servants of business. Permission given by H to use way over Hs land for purposes connected with the business. H sold the reversion to ITS but conveyance made no mention of any right of way over H's land. H subsequently tried to stop ITS using path. Held H could not stop ITS. The effect of the section was to convert the right by permission into an easement. Gives way to a contrary intention: s62(4 f) Other cases of implied reservation Peckham v Ellison [2000] 79 P&CR 276. Estoppel ER Ives Investments Ltd v High [1967] 2 QB 379 Crabb v Aran DC [1976] Ch 179 NB easements which arise by estoppel are equitable D Termination Tehidy Minerals Ltd v Norman [1971] 2 QB 528 Benn v Hardinge [1992] 66 P & CR 246 Bosomworth v Faber [1995] 69 P&CR 288 E Access to Neighbouring Land Act 1992 Court order authorising access to neighbour's land to do repair or other things reasonably necessary to preserve buildings Order must be registered as writ or order as appropriate. F Transmission The benefit: Section 187 LPA 1925: where an easement right or privilege for a legal estate is created, it shall enure for the benefit of the land to which it is intended to be annexed. Section 62 LPA 1925: A conveyance of land shall be deemed to include and shall by operation of this Act operate to convey, with the land, all....., liberties, easements, rights and advantages whatsoever, appertaining to or reputed to appertain to the land or any part thereof, or, at the time of the conveyance ... enjoyed with .... the land or any part thereof. The burden. a) Unregistered land If legal will pass at common law. If equitable: if created before 1926 the doctrine of notice applies. If after 1925 registration under Class D(iii) s2 (5)(iii) Land Charges Act

1972 b)Registered land. Under Land Registration Act 1925: If legal can be registered substantively but treated as being overriding interests within s70(1)(a) LRA 1925. If equitable treated as minor interests. But see Celsteel Ltd v Alton House Holdings [1985] 1 WLR 204 an also be overriding . Under Land Registration Act 2002. Expressly created legal and equitable easements have to be registered. Those arising by implication are overriding within sch 1 and sch 3.

Hanning v Top Deck Travel Group [1992] EGCS 84 Bakewell Management Ltd v Brandwood [2003] EWCA Civ 23