Understanding Easements | Slides Law

Easements

An easement is a proprietary interest enjoyed by the owner of one lot (dominant tenement) which

burdens another lot (servient tenement). An easement allows the owner of the DT to make a particular

use of another person’s property or (more rarely) restrict the use of land in which another person has a

freehold or leasehold interest in a particular way. Unlike leases, easements do not confer possession. An

easement is a property interest if properly construed. It is annexed to the land, runs with the land and

will keep going even if the original parties have ceased owning the land.

CHARACTERISTICS OF AN EASEMENT – Re Ellenborough Park

1. THERE MUST BE A DOMINANT AND SERVIENT TENEMENT

 DT = land benefited by easement (accommodated by easement)

 ST = land burdened by easement (subject to easement)

 AN easement cannot be unconnected with a DT (law does not recognise ‘easements in

gross’

 In Grapes v Fish, right of way was created in a document but there was nothing

identifying the DT – easement in gross, no easement

 Cf: in Gas and Fuel Corporation v Barba, provision in document for details of a DT to

be specified but hadn’t been filled in. Reference to DT was sufficient, court allowed

extrinsic evidence to prove what it was

 If the right is granted to someone who does not own land, no DT, only a licence

For example: “I give you the right to take a short cut across my property” (licence) cf. “I give

my neighbour the right to take a short cut across my property” (easement)

2. THE EASEMENT MUST BE FOR THE BENEFIT OF THE DOMINANT TENEMENT

 Question of fact: Is the right connected with the normal enjoyment of the DT?

(Ellenborough)

 It must be reasonably necessary to facilitate the convenience and better enjoyment of the

DT as land - as opposed to the personal benefit of the owner (Clos Farming Estate v Easton)

 DT and ST need not be adjoining, but they do need to be close enough for the DT to benefit

from the ST (Re Ellenborough – ‘in close proximity)

 In Re Ellenborough, the DT was used for residential purposes and the right was full

enjoyment of a nearby park. Evershed MR held that a garden ‘undoubtedly’

enhances, and is connected with, the normal enjoyment of the house to which it

belongs and thus so too does a park which is the ‘communal garden’ for nearby

houses

 In Re Ellenborough, the easement affecting the value of the DT went some way to

proving

 In Ackroyd v Smith right did not amount to an easement as the words ‘to pass and

repass for all services’ was too broad, needed something that anchored the

enjoyment of the DT, regarded as contractual licence between 2 original parties and

not enforceable against successive entitlements

3. THE DOMINANT AND SERVIENT TENEMENTS MUST NOT BE OWNED AND OCCUPIED BY THE SAME

PERSON

 Part of broader rationale that you cannot acquire rights against yourself

 Requirement can be satisfied if both DT and ST is owned by the same person but not

occupied by the same person

 Exception: subdivision and consolidation

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Easements

An easement is a proprietary interest enjoyed by the owner of one lot (dominant tenement) which burdens another lot (servient tenement). An easement allows the owner of the DT to make a particular use of another person’s property or (more rarely) restrict the use of land in which another person has a freehold or leasehold interest in a particular way. Unlike leases, easements do not confer possession. An easement is a property interest if properly construed. It is annexed to the land, runs with the land and will keep going even if the original parties have ceased owning the land.

CHARACTERISTICS OF AN EASEMENT – Re Ellenborough Park

THERE MUST BE A DOMINANT AND SERVIENT TENEMENT  DT = land benefited by easement (accommodated by easement)  ST = land burdened by easement (subject to easement)  AN easement cannot be unconnected with a DT (law does not recognise ‘easements in gross’  In Grapes v Fish , right of way was created in a document but there was nothing identifying the DT – easement in gross, no easement  Cf: in Gas and Fuel Corporation v Barba , provision in document for details of a DT to be specified but hadn’t been filled in. Reference to DT was sufficient, court allowed extrinsic evidence to prove what it was  If the right is granted to someone who does not own land, no DT, only a licence For example: “I give you the right to take a short cut across my property” (licence) cf. “I give my neighbour the right to take a short cut across my property” (easement)
THE EASEMENT MUST BE FOR THE BENEFIT OF THE DOMINANT TENEMENT  Question of fact: Is the right connected with the normal enjoyment of the DT? ( Ellenborough )  It must be reasonably necessary to facilitate the convenience and better enjoyment of the DT as land - as opposed to the personal benefit of the owner ( Clos Farming Estate v Easton )  DT and ST need not be adjoining, but they do need to be close enough for the DT to benefit from the ST ( Re Ellenborough – ‘in close proximity)  In Re Ellenborough , the DT was used for residential purposes and the right was full enjoyment of a nearby park. Evershed MR held that a garden ‘undoubtedly’ enhances, and is connected with, the normal enjoyment of the house to which it belongs and thus so too does a park which is the ‘communal garden’ for nearby houses  In Re Ellenborough , the easement affecting the value of the DT went some way to proving  In Ackroyd v Smith right did not amount to an easement as the words ‘to pass and repass for all services’ was too broad, needed something that anchored the enjoyment of the DT, regarded as contractual licence between 2 original parties and not enforceable against successive entitlements
THE DOMINANT AND SERVIENT TENEMENTS MUST NOT BE OWNED AND OCCUPIED BY THE SAME PERSON  Part of broader rationale that you cannot acquire rights against yourself  Requirement can be satisfied if both DT and ST is owned by the same person but not occupied by the same person  Exception: subdivision and consolidation

 If dominant land is subdivided, easement is presumed to accommodate the subdivided parts.  If dominant land is consolidated with other land, easement only benefits what was dominant tenement.

THE EASEMENT MUST BE CAPABLE OF FORMING THE SUBJECT MATTER OF A GRANT – Elements Expressed in Re Ellenborough  Easements can’t be expressed in terms too wide, uncertain or vague (Ellenborough; Riley)  Cannot be a jus spatiandi – right to wander at will (creating an indefinite and unregulated privilege)  Re Ellenborough and Riley – right to use a park was no a jus spatiandi as in both cases, it is given to a limited number of dominant owners for a defined servient land - very certain  It can’t confer mere rights of recreation or amusement; it must possess a quality of utility or benefit (Ellenborough)  It cannot be too strong as to amount to join occupation or substantially deprive the owner of the ST of possession and enjoyment of land ( Copeland v Greenhalf )  In Wright v McAdam , owner of DT having right to store coal on ST land’s shed was a valid easement  Cf: Copeland v Greenhalf , right to store vehicles on neighbour’s land while awaiting collection was virtually a claim of possession of the ST – not a valid easement

SCOPE AND CONSTRUCTION OF THE EASEMENT

The scope of an easement depends upon the terms of the grant which are construed in light of surrounding circumstances at the date of the grant and the parties’ original intention ( Westfield ). The courts are unwilling to consider extrinsic evidence in construing scope ( Westfield )  In Westfield , omission of the words ‘and across’ from the phrase ‘to and from *the dominant tenement+’ in the instrument indicated an intention that the easement was not intended to provide access to the remoter land. The court also agreed that the apportionment of expenses and responsibilities indicated an intention that the easement was for the benefit of Skygarden only, since they do not contemplate access to >1 property. Some change in the degree of use is permissible, provided it doesn’t go beyond what was contemplated by the parties at the time the easement was created. However, change which substantially increases the burden upon ST is not permissible and can be subject to action in nuisance (Westfield). Intensification of the use must fundamentally change the character of the grant (Templemen J in Cargill )  In Cargill , drastically increasing the amount of water extracted from ST was permissible – ‘water use for spraying is just as much used for agricultural purposes as water used for bullocks and the fact that more water may be required for crop spraying than for water bullocks is not sufficient to destroy or alter the nature of the right’  ‘The court will not recognise an easement established by illegal activity’ ( Cargill )

Understanding Easements, Slides of Law

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Easements

SCOPE AND CONSTRUCTION OF THE EASEMENT