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Land law - The right claimed must be capable of forming the subject
matter of a grant of Easement
The easement must be unambiguously and precisely specified.
The asserted entitlement must be sufficiently explicit to be delineated in a legal document. This can be better understood by examining circumstances when the definition of a claimed right has not been adequately established, such as in the case of a right to a view, which was deemed too ambiguous.
There must be an individual with the authority to grant the easement, as well as another individual who is eligible to receive the easement.
This is a simple requirement to fulfill: A grantor refers to an individual or entity that has the authority to grant an easement. For instance, a statutory corporation without the authority to issue easements would not fulfill this need. However, the owner of a freehold piece of property who wishes to offer their neighbor access over their garden would satisfy this criteria. A grantee refers to an individual or individuals who are eligible to receive the easement. It is necessary to have a clearly identified and appropriate person or group to whom the easement can be awarded. Granting an easement to an indeterminate group of individuals, such as "all of the nurses at the QE Hospital," is not feasible. Typically, the grantor and grantee are easily identifiable, often being neighboring property owners.
It should resemble preexisting forms of easements.
Once again, this provision has developed via legal cases and it is widely acknowledged that the following criteria must be taken into account while addressing this requirement: Exercise prudence while contemplating 'novel rights' and abstaining from creating any further adverse easements. b) It should not be very extensive (referred to as the 'ouster' principle). c) It should not impose any positive burden on the owner of the property that is subject to the servitude.
Exercise prudence while contemplating 'novel rights'.
Although the courts are open to considering new easements that align with our evolving social needs, they are cautious about creating new rights that may impose obligations on future property owners.
A substantial commercial edifice has been constructed in close proximity to Christine's residence, resulting in a significant degradation of her television reception due to the sheer magnitude of the new structure. Christine and her neighbors are collectively facing a common problem and intend to file a lawsuit against the owners of the new building. Their claim is based on the fact that they had a legal right to receive uninterrupted television signals in their homes, known as an easement. Considering all the information you have read thus far, do you concur that this has the potential to be a legally recognized easement? In the case of Hunter v Canary Wharf [1997], the court rejected the claim and determined that the request for an easement allowing uninterrupted television broadcasts was deemed imprecise and ambiguous. This was primarily due to the fact that multiple individuals were benefiting from the easement, making it difficult to explicitly identify each beneficiary. Furthermore, it was determined that the proposed action would excessively disrupt the servient land.
The courts have established that they will not acknowledge any newly imposed negative easements due to the significant limitations they would impose on the adjacent property.
In contrast to a positive easement, which requires the dominant owner to actively exercise their right by physically traversing the servient land, this situation does not necessitate any activity on the part of the dominant owner.
Definition: Negative easement refers to a legal right that restricts the use or development of a property by its owner.
A negative easement is a privilege that the dominant owner can use without needing to take any specific action. There are various recognized types of negative easements, including rights of support, which prohibit an adjacent neighbor from demolishing existing structures, and rights of light, which prohibit an adjacent neighbor from constructing on their land in a way that obstructs light to the neighboring land.
In contrast to a positive easement, which requires the dominant owner to actively engage in activities like strolling or driving on the servient land to exercise their rights, this situation does not necessitate any effort on the part of the dominant owner.
The proprietor of the servient land completely demolished his house, resulting in the exposure of a wall belonging to the dominant land to the elements. The primary landowner asserted an easement to secure the entitlement of protection from the elements. Is it possible to obtain an easement for the purpose of 'protection from the weather'?
The Court of Appeal in the case of Phipps v Pears [1965] declined to grant the request, as doing so would limit the rights of the owner who is subject to the servitude and impede the progress of property development. The individual believed that the owner in control may have safeguarded their property by engaging in a mutual agreement with the neighboring property owner to refrain from demolishing a wall. This agreement could have been legally obligatory for all future owners as a restrictive covenant.
The idea of 'ouster' dictates that the easement should not be overly extensive. Additionally, it is important to note that the easement only grants a limited right or use of another person's land. An easement grants the privilege of utilizing the land, but not the ownership or control of the land.
This problem primarily arises in cases involving easements related to storage and parking. Although it may appear to be a straightforward matter, the courts have occasionally had difficulties in determining the exact point at which the "use of land" transitions into "possession of land."
The case of Wright v Macadam The year 1949.
A renter may possess the entitlement to store coal in the shed belonging to her landlord.
The case of Copeland v Greenhalf [1952]
The court rejected the notion that a legal right had been established for a wheelwright to park his wagons, wheels, and other vehicles on a specific piece of land owned by another individual. The court deemed that this granted an excessive degree of authority to the dominant owner, and the claim essentially sought shared possession of that specific parcel of land.
Grigsby v Melville [1972]
The parties were owners of adjoining properties and the defendant was claiming a right to store
coal in the cellar beneath the neighbour’s house.
The judge indicated that he would have followed the decision in Copeland v Greenhalf, since in his. view the right claimed amounted to excessive use of the cellar.
London & Blenheim Estates Ltd v Ladbrooke
Retail Parks Ltd [1992]
The court suggested that the test is one of degree and that the ‘line’ would be crossed when the right is so extensive that it would amount to occupation of the land and leave the servient owner with no reasonable enjoyment of their land. If, however, there is room for the dominant tenant to park their car and other uses, then an easement of parking could exist.
Batchelor v Marlow [2003]
The court held that parking six cars on the servient land between the hours of 8.30am and 6.00pm rendered the servient owners’ use of the land erroneous and without any reasonable use of their land, for parking or otherwise. This decision seemed to introduce the ‘substantial interference’ test.
Moncrieff v Jamieson [2007]
The parking took up the entirety of the relevant space. The space in question was one of
necessity for the dominant owner as their house was perched on the edge of a cliff and there was nowhere else to park the car.
Lord Scott suggested that the test should not focus on the area of the parking space relative to
the whole of the servient land, but instead should focus upon whether the servient owner retains sufficient possession and control over the part of the land of which the right is claimed.
It must be no positive burden on the servient owner
The final point to consider when ensuring the easement is like existing forms of easements is that, generally, the servient owner must not be obliged to do anything or spend money as a result of the grant of the easement. The only thing the servient owner must do is allow the
dominant owner to exercise their right without interference.
Example
Marcus has an easement to run electricity cables over his neighbour’s land. The electricity supplier has refused to connect the supply unless the neighbour also grants the electricity supplier a direct easement.
Would requiring the neighbour to enter into a direct easement with a third party, unrelated to the land, meet the requirements of a valid easement?
No, it would not, and these are the facts of William Old International Ltd v Arya [2009] and the court held that a servient landowner had no obligation to do this. An easement cannot
oblige the servient landowner to enter into a contract or proprietary relationship with a third party (and likely cost them money in legal fees).
If you can satisfy all these requirements then you can be sure that the right claimed is capable of being an easement.
matter of a grant of Easement
The easement must be unambiguously and precisely specified.
The asserted entitlement must be sufficiently explicit to be delineated in a legal document. This can be better understood by examining circumstances when the definition of a claimed right has not been adequately established, such as in the case of a right to a view, which was deemed too ambiguous.
There must be an individual with the authority to grant the easement, as well as another individual who is eligible to receive the easement.
This is a simple requirement to fulfill: A grantor refers to an individual or entity that has the authority to grant an easement. For instance, a statutory corporation without the authority to issue easements would not fulfill this need. However, the owner of a freehold piece of property who wishes to offer their neighbor access over their garden would satisfy this criteria. A grantee refers to an individual or individuals who are eligible to receive the easement. It is necessary to have a clearly identified and appropriate person or group to whom the easement can be awarded. Granting an easement to an indeterminate group of individuals, such as "all of the nurses at the QE Hospital," is not feasible. Typically, the grantor and grantee are easily identifiable, often being neighboring property owners.
It should resemble preexisting forms of easements.
Once again, this provision has developed via legal cases and it is widely acknowledged that the following criteria must be taken into account while addressing this requirement: Exercise prudence while contemplating 'novel rights' and abstaining from creating any further adverse easements. b) It should not be very extensive (referred to as the 'ouster' principle). c) It should not impose any positive burden on the owner of the property that is subject to the servitude.
Exercise prudence while contemplating 'novel rights'.
Although the courts are open to considering new easements that align with our evolving social needs, they are cautious about creating new rights that may impose obligations on future property owners.
A substantial commercial edifice has been constructed in close proximity to Christine's residence, resulting in a significant degradation of her television reception due to the sheer magnitude of the new structure. Christine and her neighbors are collectively facing a common problem and intend to file a lawsuit against the owners of the new building. Their claim is based on the fact that they had a legal right to receive uninterrupted television signals in their homes, known as an easement. Considering all the information you have read thus far, do you concur that this has the potential to be a legally recognized easement? In the case of Hunter v Canary Wharf [1997], the court rejected the claim and determined that the request for an easement allowing uninterrupted television broadcasts was deemed imprecise and ambiguous. This was primarily due to the fact that multiple individuals were benefiting from the easement, making it difficult to explicitly identify each beneficiary. Furthermore, it was determined that the proposed action would excessively disrupt the servient land.
The courts have established that they will not acknowledge any newly imposed negative easements due to the significant limitations they would impose on the adjacent property.
In contrast to a positive easement, which requires the dominant owner to actively exercise their right by physically traversing the servient land, this situation does not necessitate any activity on the part of the dominant owner.
Definition: Negative easement refers to a legal right that restricts the use or development of a property by its owner.
A negative easement is a privilege that the dominant owner can use without needing to take any specific action. There are various recognized types of negative easements, including rights of support, which prohibit an adjacent neighbor from demolishing existing structures, and rights of light, which prohibit an adjacent neighbor from constructing on their land in a way that obstructs light to the neighboring land.
In contrast to a positive easement, which requires the dominant owner to actively engage in activities like strolling or driving on the servient land to exercise their rights, this situation does not necessitate any effort on the part of the dominant owner.
The proprietor of the servient land completely demolished his house, resulting in the exposure of a wall belonging to the dominant land to the elements. The primary landowner asserted an easement to secure the entitlement of protection from the elements. Is it possible to obtain an easement for the purpose of 'protection from the weather'?
The Court of Appeal in the case of Phipps v Pears [1965] declined to grant the request, as doing so would limit the rights of the owner who is subject to the servitude and impede the progress of property development. The individual believed that the owner in control may have safeguarded their property by engaging in a mutual agreement with the neighboring property owner to refrain from demolishing a wall. This agreement could have been legally obligatory for all future owners as a restrictive covenant.
The idea of 'ouster' dictates that the easement should not be overly extensive. Additionally, it is important to note that the easement only grants a limited right or use of another person's land. An easement grants the privilege of utilizing the land, but not the ownership or control of the land.
This problem primarily arises in cases involving easements related to storage and parking. Although it may appear to be a straightforward matter, the courts have occasionally had difficulties in determining the exact point at which the "use of land" transitions into "possession of land."
The case of Wright v Macadam The year 1949.
A renter may possess the entitlement to store coal in the shed belonging to her landlord.
The case of Copeland v Greenhalf [1952]
The court rejected the notion that a legal right had been established for a wheelwright to park his wagons, wheels, and other vehicles on a specific piece of land owned by another individual. The court deemed that this granted an excessive degree of authority to the dominant owner, and the claim essentially sought shared possession of that specific parcel of land.
Grigsby v Melville [1972]
The parties were owners of adjoining properties and the defendant was claiming a right to store
coal in the cellar beneath the neighbour’s house.
The judge indicated that he would have followed the decision in Copeland v Greenhalf, since in his. view the right claimed amounted to excessive use of the cellar.
London & Blenheim Estates Ltd v Ladbrooke
Retail Parks Ltd [1992]
The court suggested that the test is one of degree and that the ‘line’ would be crossed when the right is so extensive that it would amount to occupation of the land and leave the servient owner with no reasonable enjoyment of their land. If, however, there is room for the dominant tenant to park their car and other uses, then an easement of parking could exist.
Batchelor v Marlow [2003]
The court held that parking six cars on the servient land between the hours of 8.30am and 6.00pm rendered the servient owners’ use of the land erroneous and without any reasonable use of their land, for parking or otherwise. This decision seemed to introduce the ‘substantial interference’ test.
Moncrieff v Jamieson [2007]
The parking took up the entirety of the relevant space. The space in question was one of
necessity for the dominant owner as their house was perched on the edge of a cliff and there was nowhere else to park the car.
Lord Scott suggested that the test should not focus on the area of the parking space relative to
the whole of the servient land, but instead should focus upon whether the servient owner retains sufficient possession and control over the part of the land of which the right is claimed.
It must be no positive burden on the servient owner
The final point to consider when ensuring the easement is like existing forms of easements is that, generally, the servient owner must not be obliged to do anything or spend money as a result of the grant of the easement. The only thing the servient owner must do is allow the
dominant owner to exercise their right without interference.
Example
Marcus has an easement to run electricity cables over his neighbour’s land. The electricity supplier has refused to connect the supply unless the neighbour also grants the electricity supplier a direct easement.
Would requiring the neighbour to enter into a direct easement with a third party, unrelated to the land, meet the requirements of a valid easement?
No, it would not, and these are the facts of William Old International Ltd v Arya [2009] and the court held that a servient landowner had no obligation to do this. An easement cannot
oblige the servient landowner to enter into a contract or proprietary relationship with a third party (and likely cost them money in legal fees).
If you can satisfy all these requirements then you can be sure that the right claimed is capable of being an easement.
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