Understanding Easements: Types, Criteria, and Limitations, Study notes of Business

Download Understanding Easements: Types, Criteria, and Limitations and more Study notes Business in PDF only on Docsity! Revision: Land [EASEMENTS] • The right to enjoy or use (positive); or the right (indirectly) to restrict the use or enjoyment of land belonging to someone else (negative) • Legal capacity: s1(2) LPA 1925 Rights analogous to easements 1. Quasi-easements: exercised by landowner over his own land: could become easements in certain circumstances 2. Natural rights: e.g. right to support of land in its natural state (but cannot have natural right of support to a building erected on the land) 3. Public rights: can be exercised by general members of the public – e.g. public right of way o Customary rights: e.g. right to hold a fare – created individually by statute 4. Licenses: cannot exist as an interest in land: confers a mere personal right. Some licenses may be accompanied by estoppel binding on a 3rd party by notice, which may look very similar to an equitable easement (Ives Investment Ltd v High) 5. Restrictive Covenants: similar to negative easements 6. Profits a prendre: similar to an easement but involving the right to enter someone’s land and take something from the soil Rights capable of becoming an easement: The Re Ellenborough Park Criteria • There must be a dominant and servient tenement • The right must accommodate the dominant tenement • There must be diversity of ownership between the dominant and servient tenement • The right must lie in grant A dominant and servient tenement must exist: • There must be two identifiable pieces of land: one which has the benefit and one which carries the burden London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd • An easement cannot exist in gross: cannot be exercised by the holder independently of land that he may own: Hawkins v Rutter: this may amount to a license (a mere personal right which need not be attached to a dominant piece of land) 1 Revision: Land [EASEMENTS] Accommodating the dominant tenement: Would the right be of benefit to any owner of the dominant land, irrespective of who they are • Direct beneficial impact on the dominant tenement: makes the dominant tenement a better property • Right which provides a mere personal benefit cannot be an easement: e.g Alfred Becket v Lyons: right to collect coal by the seaside: purely personal • Accommodation: whether the right adds value to the dominant tenement (although adding value is not itself conclusive, but a factor to be considered) o Re Ellenborough Park: ‘not sufficient to show that the right increased the value of the property conveyed, unless it is also shown that it was connected with the normal enjoyment of that property’: question of fact  Right to use a garden: • Argument vs. accommodation: counsel likened the park to use of a Zoological Garden free of charge: increased the value of the property but insufficient nexus between enjoyment and use of the house: independent of use of the house • But: Evershed MR test of connexion IS satisfied: park was a communal garden for the benefit and enjoyment of those whose houses adjoined it – ‘it is the collective garden of the neighbouring houses, to whose use it was dedicated by the owners of the estate’ • A right which facilitates a commercial use of the land is not precluded from being an easement: question is whether the business is a necessary incident of the normal use of the land rather than a completely unconnected business o Hill v Tupper: Mr H was granted the right to put Pleasure Boats on the Basingstoke Canal. When Mr T tried to compete Mr H went to court claimant he had an exclusive easement. It was held that his right was purely personal: he did NOT have a proprietary right  Pollock CB: ‘it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee’ 2