Answering Problem Questions on Easements: Rights over neighbouring land.

What is an Easement

Although land maybe owned at law by one person, it is possible that others will enjoy rights over
that land. These are known as 'Easement', and they consist of right to use, or restrict the use of,
the land of another person in some way, such rights which includes: a right of way, a right to
water flowing through your neighbour's land.

The Characteristics of Easement

The main Characteristics of an easemnet were laid down in the leading case of Re Ellenborough
Park (1956) CH 131. which includes;

1. There must be a dominant and a servient tenement;

The right must relate to two separate plots of land: The dominant tenement is the plot of land
whose owner enjoys the right constituted as an easement. while the servient tenement is the
plot of land over which the easement is exercised or the land burdened by the easement.

London & Blenheim Estates Ltd v Retail Parks Ltd 1992, an easement cannot exist as an
incorporeal hereditament unless and untill they are both a dominant and servient tenement in
ownership.

J Paul baker.

2. The easement must accommodate the dominant tenement;

This means the right must be for the benefit of the land and not merely for the benefit of a
person in his personal capacity. If the rights can be said to be attached to land then it is assumed
that it is for its benefit. Hill v Tupper 1863, Moody v Steggles 1879, Mounsey v Ismay 1865,
International Tea Stores Company v Hobbs 1903

3. The dominant and servient tenements must be owned or occupied by different persons

This means that the dominant and servient tenement must be either owned or occupied by
different persons. It has long been accepted that you cannot own an easement over your own
land.
4. The easement must be capable of forming the subject-matter of a grant.

There must be a capable grantor and grantee, the right itself must e sufficiently definite and the
right must be in the nature of an easement. case examples; Phipps v Pears 1965, Crow v Wood
1971

Answering Problem Questions

Introduction

Introduce the issues, the key concepts and why they are important. One of the difficulties with
this question is deciding how much detailed law to put in the introduction and how much to
state as you deal with each of the claims. It is not wrong to start by setting out the law in detail
before applying it to each of the rights in turn and doing so may help avoid duplication and
repetition as the answer progresses. However, a detailed statement of the rules at the beginning
of the answer will need to be balanced by setting out clearly exactly how those rules apply to
each of the rights being claimed.

Rules

Have any of the arrangements created an easement?

In each case:

1) Is the right claimed capable of being an easement – the four traditional requirements (Re
Ellenborough Park [1956] Ch 131)? See Land Law, Section 8.4.

a) Is there a dominant and servient tenement?

b) Does the right accommodate the dominant tenement?

c) Are the dominant and servient tenements owned or occupied by different people?

d) Is the right capable of being the subject matter of a grant?

2) Has the right been acquired by a method that creates an easement?

a) Statute – very unlikely

i) Grant or reservation?

ii) Express or implied?

c) Prescription?

[Prescription needs at least 20 years user, so will not be relevant to answering this question until
2015.] See Land Law, Section 8.5.

3) If necessary, has the right been protected by registration?

a) Legal easements.

b) Equitable easements.

See Land Law, Section 8.2.2 and the relevant Sections of Chapters 15 (registered title) and 16
(unregistered title).

Answer Plan:

Right of way

a) Is this right capable of being an easement?

b) Has it been properly created?

c) Did it require protection by registration?

A right to pass and re-pass along a privately owned road, or across privately owned land is one
form of easement. But a public right of way is not an easement because there's no dominant
tenement taking the benefit.

International Tea Stores Company v Hobbs (1903). It was held that the use of the landlord
garden for his own enjoyment could not exist as an easement because it was merely the right to
walk at will.

Car parking

a) Is this right capable of being an easement?

b) Has it been properly created?

London & Blenheim Estates Ltd v Retail Parks Ltd 1992, The claimant who owned a part of a
shopping center, claimed that the right of customer to park on a central car park could exist as
an exist. the problem here was that the claimant had not got an interest in land at the time
when the easement was first claimed.

It was held that an easement cannot exist as an incorporeal hereditament unless and untill they
are both a dominant and servient tenement in ownership.

J Paul baker.

Storage

a) Is this right capable of being an easement?

b) Has it been properly created?

c) Did it require protection by registration?

Wright V Macadam (1949): A tenant was allowed to store her coal in a shed on the landlord's
land. This was upheld as an easement although on the facts tha the landlord would not have
access to the shed at all.

Compare to this case is the case of Grigsby V Melvile (1973): The claimant had a right to
unlimited storage within a celler beneath his neighbours property and it was held that this could
not be an easement because it was a claim to beneficial ownership.

License

A license cannot have an easement but a tenant under a lease can have an easement, even
against land retained by his landlord. A license can never bind a third party purchaser, whereas a
properly created legal easement can be binding on third parties.

Hill V Tupper; The claimant had a lease of an area that fronted on to a canal. he was given the
sole and rights to put pleasure boats on it. It was held that the right was no more than a license
as it did not enhance the enjoyment of the land but merely incidental to the business run by the
claimant.
Purchaser and Third Party

Under s. 62 Land of Property Act 1925, and as well as under the rule in Wheeldon v Burrows,
purchasers can claim the benefit of any rights in the nature of easements enjoyed by the seller
before the sale. These rights are refere to as quasi-easement and can be enforced by the
purchaser. The rule can be applied whether the land is held on freehold or leasehold.

Right of Support

a) Is this right capable of being an easement?

b) Has it been properly created?

c) Did it require protection by registration?

In many city and town centres the buildings are physically joined to each other, by a party wall,
so as to mutually support each other. If one such building were to be demolished it could cause
at least partial collapse of its neighbour. The remaining building has a right of support from the
demolished building, and the owner of the adjoining land owes a duty of support to the
remaining building. Thus it is necessary for the owner who demolishes his building to provide for
the continued support of the remaining building on neighbouring land.

The same right of support and duty of support applies if ground is removed too close to a
neighbouring building.

The right of support can also apply to ground (as distinct from a building) that is in danger of
collapse as a result of excavation on neighbouring land.Thus a right of support also exists in the
case of retaining walls that coincide with a property boundary.

If you wish to demolish a building that has a party wall, or if you own the building next door to
the proposed demolition, consult a chartered building surveyor for advice before the start of any
work on the building.

Right to Light

Rights to light can be a complicated area. In the absence of a restrictive covenant on your
neighbour, it may be difficult to argue that he should not have planted those trees that are now
blocking your light. It may be more difficult still to argue that he should remove the newly
erected building that now blocks your light.

It is important to remember that the right is enjoyed by the land, not necessarily by any
particular building or window on it. It is therefore possible to demolish an old building and
replace it with a new one and still claim a right to light through the new windows. However, if
the windows in the new building are significantly smaller than those in the demolished building,
you may have great difficulty in proving that any reduction in light is due to the actions of your
neighbour.

For advice on rights to light, consult a chartered building surveyor who specialises in the subject.

Water Rights

These usually take the form of a right to draw water from a watercourse or a spring on a
neighbour's land. Problems can arise if you increase the amount of water that you take, or if the
natural flow diminishes below a level that will support your needs. If you should stop using the
water because you have made arrangements for an alternative water supply, you may have
difficulty if you try to draw on the water again after a gap of many years.

For advice, consult a water engineer.

Wells

There are still a few houses in this country that are not connected to a water supply. They are
quite likely to enjoy the benefit of an easement that allows them to draw water from a well in
neighbouring land.

No right to sun or air

From time to time people have experienced problems relating to the natural elements of wind
and sunshine. For example, if a new structure on a neighbour's land obstructs the passage of air
to a windmill, or interferes with the extraction of smoke from a chimney, or prevents the
sunshine from reaching solar panels. Whenever a landowner has attempted to pursue through
the courts a claim to a right to air or sunshine, the case has been lost.

No right to a view
For some home buyers the view afforded from a particular property may be a major selling
point. Unfortunately for those people there is no right to that view. If there was such a right then
no neighbouring land owners would be able to develop their land.

If you buy a house overlooking farm land then it is entirely possible that the farmer may sell the
land adjoining your own to a developer who will cover it with many more houses, completely
changing - possibly ruining - your view. There is nothing you can do about this .... unless you
have both the foresight and the money to buy up the farmland to prevent it from falling intro a
developer's hands!

If, on the other hand, you live next to a neighbour from hell who realises that by planting a fast-
growing coniferous hedge on his side of your common boundary he can cause you considerable
annoyance, then you can deal with his hedge under the Anti-social Behaviour Act 2003:

Express and Implied Grant

An easement may be created in a number of ways. One is by express grant . In this case there
may be a Deed of Grant that states the terms of the easement, or the grant may take the form of
a clause in a conveyance deed or a transfer deed.

An easement may be Implied or simly inferred in favour of the purchaser of land. Easement by
implied grant can arise in the following ways; by necessity. Thus a parcel of land will have a right
of way of necessity over a road, track or path leading to it if that route is the only means of
access between the public highway and that parcel of land.

An easement may also be created by prescription. This happens when someone carries out an
act (that is capable of being an easement) repeatedly, openly and without the (potentially
servient) landowner's permission for a period of at least twenty years.

If a parcel of land is sold together with an expressly granted easement then that parcel becomes
the dominant tenement that has rights over neighhbouring land. At the same time, if the vendor
of that same parcel of land reserves a right over the land being sold then it is also a servient
tenement burdened with the rights reserved for the vendor's retained land.

If there is a doubt as to whether or not an easement exists then the law tends to favour the
existence of the easement. As the Law of Property Act 1925 puts it:
"62.(1) A conveyance of land shall be deemed to include and shall ... operate to convey, with the
land, all ... liberties, privileges, easements, rights, and advantages whatsoever, appertaining or
reputed to appertain to the land, or any part thereof, or, at the time of the conveyance ...
enjoyed with or reputed or known as ... appurtenant to the land or any part thereof. "

An easement cannot be created as a result of an illegal act. Thus the driving of motor vehicles
across common land does not create a private right of way.

An easement is very difficult to extinguish and should be thought of as existing forever. The land
of the servient tenement is burdened with the easement. The owner of the dominant tenement
should not forget that the owner of the servient tenement has a right to the peaceful enjoyment
of his land and the legitimate development of his land, and the performance of the easement
should not interfere with the servient owner's peace nor prevent him from exercising his right to
develop his land (provided that the development caters for the easement).

An easement is said to "run with the land", i.e. it cannot be sold separately from the land but
must be passed on with the land whenever the land is transferred to a new owner