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Question 1: easement

Consider whether or not each of the following rights in land amount to an easement:
(a) Arthur granted Bertram the right to store his gardening tools in a shed on Arthur’s land
(b) Colette’s right to use the sewerage system running across the farmhouse to properly channel waste from
her house to the sewerage tank. There is no other path to the sewerage tank. Colette has sold the
farmhouse to Doug, and later sold her house to Ben
(c) Henry has an agreement with Gavin, allowing Gavin to use the swimming pool in Henry’s back yard
(d) Jon had always parked his car on the east side of his land. When he sold the west side of his land to
Ivor, he did not tell Ivor that Ivor could park on the land retained by Jon

a valid easement must:

1. satisfy the Re Ellenborough Park requirements AND

2. have been acquired through

a) express:
i. grant
ii. reservation

b) implied:
i. grant: common intention, necessity, Wheeldon v Burrows, s62 LPA 1925
ii. reservation: common intention, necessity

(a) Arthur granted Bertram the right to store his gardening tools in a shed on Arthur’s land

1. Re Ellenborough requirements

i. there must be a dominant tenement and a servient tenement

o DT: Bertram’s land

o ST: Arthur’s land

ii. the dominant tenement and servient tenement must be owned or occupied by different people

o Arthur and Bertram occupy their respective lands

iii. the easement must accommodate the dominant tenement

- the DT and ST must be sufficiently proximate

o there is no indication of whether Bertram’s land is sufficiently proximate to Arthur’s

- it must not confer a purely personal advantage

o the enjoyment of a right of storage is not personal as it relates to the occupation of land

iv. the easement must be capable of forming the subject matter of a grant

- the rights must be sufficiently certain

o a right to park can be clearly defined

- there must be a capable grantor and grantee

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o Arthur and Bertram are capable persons

Factors to negate an easement: excessive use

London & Blenheim Estates v Ladbroke Retail Parks (1994): “The essential question is one of degree. If the
right granted in relation to the area over which it is to be exercisable is such that it would leave the servient
owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement
though it might be some larger or different grant. The rights sought in the present case do not appear to
approach anywhere near that degree of invasion of the servient land. If that is so — and I emphasise that I have
not gone into the facts — I would regard the right claimed as a valid easement.”

Moncrieff v Jamieson (2007):

- “… the right must be such that a reasonable use thereof by the owner of the dominant land would not be
inconsistent with the beneficial ownership of the servient land by the servient owner … To the extent,
however, that the “ouster” principle is asserting that a servitude must not be inconsistent with the
continued beneficial ownership of the servient land by the servient owner, I would unreservedly accept it.
If, for example, the nature of the purported servitude were to place the dominant owner in such occupation
of the servient land as to bar the servient owner from possession or control of the land I would find it very
difficult to accept that the right could constitute a servitude.”
- “Sole user, as a concept, is quite different from, and fundamentally inferior to, exclusive possession. Sole
use of a coal shed for the storage of coal does not prevent the servient owner from using the shed for any
purposes of his own that do not interfere with the dominant owner's reasonable use for the storage of
coal. The dominant owner entitled to a servitude of way or for the passage of water along a viaduct does
not have possession of the land over which the road or the viaduct passes. If the coal shed door had been
locked with only the dominant owner possessing a key and entry by the servient owner barred, so that the
dominant owner would have been in possession and control of the shed, I would have regarded it as
arguable that the right granted was inconsistent with the servient owner's ownership and inconsistent with
the nature of a servitude or an easement. But sole use for a limited purpose is not, in my opinion,
inconsistent with the servient owner's retention of possession and control or inconsistent with the nature
of an easement.”

o If Bertram’s use of the shed prohibits Arthur from also using the shed, there is excessive use –
London & Blenheim
o If Bertram’s use of the shed prohibits Arthur from also using the shed, but Arthur is in control of the
shed, the use is not excessive - Moncrieff

2. Acquisition

o Since Arthur granted the right to park, it is likely that this constitutes an express grant
o The easement is legal if:
o It was granted in a deed - s52(1) LPA 1925 AND
o Registered – s27(2)(d) LRA 2002
o The easement is equitable if:
o It was granted in any other form of writing - s2(1) LP(MP) A 1989 OR
o It was not registered under s27(2)(d) LRA 2002

(b) Colette’s right to use the sewerage system running across the farmhouse to properly channel waste from
her house to the sewerage tank. There is no other path to the sewerage tank. Colette has sold the farmhouse
to Doug, and later sold her house to Ben

1. Re Ellenborough

o All the requirements can be satisfied

o The use of a sewerage system is necessary and so accommodates the DT

2. Acquisition (by Colette)

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IMPLIED RESERVATION

(a) common intention

Pwllbach Colliery v Woodman (1915): “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”

Re Webb’s Lease (1951):

- “That question must be approached with the following principles in mind:
(i) If the landlord intended to reserve any such rights over the demised premises it was his duty to
reserve them expressly …
(ii) … having failed in this duty, the onus was upon him to establish the facts to prove, and prove
clearly, that his case was an exception …
(iii) The mere fact that the tenant knew at the date of the lease … that the landlord was using the
outer walls of the demised premises for the display of the advertisements in question did not suffice
to absolve the landlord from his duty of expressly reserving any rights in respect of them he intended
to claim, or to take the case out of the general rule”
- “… the advertisements were not only present at the date of the grant but had been continuously
present without objection by the tenant since the commencement of his original tenancy … Does this
circumstance suffice to raise a necessary inference of an intention common to both parties at the
date of the lease that the landlord should have reserved to him the right to maintain these
advertisements throughout the 21 year's term thereby granted? I cannot see that it does. The most
that can be said is that the facts are consistent with such a common intention. That will not do. The
landlord must surely show at least the facts are not reasonably consistent with any other
explanation.”

o Colette sold the farmhouse to Doug with the intent that she will continue to occupy her house – surely
Doug will have intended the same
o It was Colette’s duty to expressly reserve any easement that she may need in order to continue
occupying her house
o Since she did not, she has the burden of proving that it is necessary for her to use the drains
o Since there is no other path to the sewerage tank, it will be necessary for Colette to continue using
the system running across the farmhouse
o The easement is reserved

(b) necessity

Adealon International Proprietary v Merton London (2007): “In the case of the grantee, the application of
the presumption should in principle be unaffected by such possibilities. The grantee's normal expectation
is that access, if not otherwise available will be allowed as an incident to the grant, and thus that it will be
provided by the grantor over land within his control. Where the roles are reversed, the grantor has no
equivalent expectation. On the contrary the presumption is that any rights he requires over the land
transferred will have been expressly reserved in the grant, and the burden lies on the grantor to establish
an exception. To that issue the existence of other realistic possibilities of access, even if not legally
enforceable at the time of the grant, is clearly relevant”

o a proper drainage system in vital – with no other path to the sewerage tank, Colette can demonstrate
that it is necessary for her to continue using the system running across the farmhouse
o The easement is reserved

2. Acquisition (by Ben)

IMPLIED GRANT

S62(1) LPA 1925: a conveyance of land shall be deemed to include all privileges, easements, rights and
advantages whatsoever
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i) there must have been a conveyance of a legal estate

o the sale of the house from Colette to Ben must comply with all formalities: deed (s52(1) LPA 1925)
and registration (s27(2)(a) LRA 2002)

ii) he right should have been enjoyed at the time of conveyance

o the right was enjoyed by Colette, since she did successfully reserve it

iii) prior diversity of occupation

o the house was occupied by Colette, and the farmhouse was occupied by Doug

Ben successfully acquires this easement under s62

(c) Henry has an agreement with Gavin, allowing Gavin to use the swimming pool in Henry’s back yard

1. Re Ellenborough

Issue: does it accommodate DT?

Moncrieff v Jamieson (2007): “the right to use a swimming pool would be no more than an in personam
contractual right at best”

Regency Villas v Diamond Resorts (2018):

- “recreational and sporting activity … is so clearly a beneficial part of modern life that the common law
should support structures which promote and encourage it, rather than treat it as devoid of practical
utility or benefit”
- “Where the actual or intended use of the dominant [land] is itself recreational, as will generally be the
case for holiday timeshare developments, the accommodation condition [in Ellenborough Park] will
generally be satisfied”

o the right to use Henry’s swimming pool is not likely to accommodate the dominant tenement (Gavin’s
land) as it is purely personal in nature
o Regency Villas may be distinguished on the basis that Gavin’s land is not recreational property

2. Acquisition

o the agreement (if written) giving the right constitutes an express grant
o since the requirements in Re Ellenborough are not satisfied, Gavin has a license

(d) Jon had always parked his car on the east side of his land. When he sold the west side of his land to Ivor,
he did not tell Ivor that Ivor could park on the land retained by Jon

1. Re Ellenborough

o although a shortcut may be necessary, it can enhance the utility of Ivor’s land, and so it does
accommodate Ivor’s land

2. Acquisition
IMPLIED GRANT
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Wheeldon v Burrows (1879): where a person transfers part of his land to another, that transfer impliedly
includes the grant of all the rights in the nature of the easements which the seller enjoyed and used prior to the
transfer

requirements:

(i) “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)”
(ii) “which are necessary to the reasonable enjoyment of the property granted”
(iii) “have been and are at the time of the grant used by the owners of the entirety for the benefit of the part
granted”

Ward v Kirkland (1967):

- “The words ‘continuous and apparent’ seem to be directed to there being on the servient tenement a
feature which would be seen on inspection and which is neither transitory nor intermittent.”
- “it would appear that the ‘easements which are necessary to the reasonable enjoyment of the property
conveyed’ might be a separate class from ‘continuous and apparent easements.’”
- perhaps the ‘easements necessary to the reasonable enjoyment of the property conveyed’ might refer to
negative easements”
- There is no case where any positive easement has been held to pass by implication, which was not
physically apparent”
- suggests that requirement (i) and (ii) are alternatives

o Following the approach in Ward v Kirkland, the first requirement must be satisfied here, as this
situation concerns a positive easement
o Therefore, in order for the easement to be validly created, there must be a visible indication that a car
is parked on the east side of the property (eg: garage, lines on the ground)
o It is not necessary to prove that parking is necessary to the reasonable enjoyment of Ivor’s land

Wood v Waddington (2014):

- “The usual meaning of "continuous" … is uninterrupted or unbroken. The right or advantage claimed is a
right to use the ways, not the ways themselves. Accordingly it is the use that must be continuous”
- the easement here failed as the dilapidated condition of the road and its infrequent use proved that it was
not necessary to be reasonable enjoyment of the land
- this decision suggests that requirements (i) and (ii) are cumulative

o Following Wood v Waddington, all 3 requirements in Wheeldon must be satisfied

o Therefore, in order for the easement to be validly created, the parking must have been regularly done
by Jon, before he sold the west side to Ivor
o Having a space to park can be regarded as being reasonably necessary for the enjoyment of Ivor’s land
– this is provided there is no space on Ivor’s own land for parking
o The interpretation in Ward may be the preferred approach, since the interpretation in Wood creates
an overlap with the 3rd requirement in Wheeldon