Easements

Right to draw water for cattle

Right of way over land

Right to collect seaweed

Right to dump manure (Redmond v Hayes)

Liverpool City Council v Irwin. Flats initially serviced by stairs and two lifts. Over years, conditions deteriorated, flats used for drug use etc. Residents, due to reduction in facilities, could no longer use the lifts and found it difficult to navigate the stairwell covered in needles. HoL held that firstly the residents had an easement to use stairs and lifts. Importantly said that, where that fell into disrepair, even due to antisocial behaviour, council had obligation to carry out reasonable repairs as would be necessary to ensure that the residents could access them.

Heaney v Dublin Corporation. About 10 years later. Tower blocks in Ballymun, similar facts. Stairs and lifts unusuable, not necessary b/c of Dublin corporation but third parties. Heaney attempted to utilise Irwin. Irish SC recognised that they had an easement to enable them get to and from residence without undue danger. Grounded that in article 40.5. Inviolability of the dwelling. Applicants had a right under the Constitution to freely enter and leave their dwellings, that constitutional right was supplemented by an obligation on Dublin Corporation to recognise that easement the tenants had.

Those two cases are an exception to the rule that the dominate tenement can't require the servient tenement to expend money so that the former can exercise their right to the easement.

There is a general suspicion of recognising new easements.

Rejected easements:

Taking the air (Dyce v Haye). Lord St Leonards said in this case that what is acceptable as an easement necessarily changes over time.

Horse racing on village green (Mounsey)

Pleasure boats on a canal (Hill)

Hamilton v Musgrove.

The easement must benefit the land in some way, it's not a personal right of the person.

Evershed MR in Re Ellenborough Park defined easements:

1. There must be a dominant and servient tenement.

2. The easement must accommodate the dominant tenement. It’s a benefit for the land, not the owner of the land. Must increase/make more beneficial the use of the land.

3. Dominant and servient owners must be two separate persons.

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

Easement can only exist if it's appurtenant(annexed) to some piece of land, so it can benefit that land.

Lattimer v Official Co-Operative Society. Structural support. Buildings don't need to be directly adjacent.

Woodmanv Pwllbach Colliery Co. Ltd. Coalminers argued they have an easement to spread coaldust over any land they worked. Court said you can't have an easement over an indefinite amount of land.

Cannot exist unless it confers benefit on the dominant tenement. Not sufficient to provide temporary personal advantage to the owner of the land. Does it make the dominant tenement a better and more convenient property?

Not merely recreational or pleasure purposes. But Re Ellenborough Park the use of public gardens was permitted. Raised the value of the property.

Hill v Tupper. Pleasure boats on a canal. Purely a commercial venture, didn't really benefit the land.

A right in alieno solo, can't have an easement over your own land.

Exception: When you grant exclusive ownership of the land to someone else, you may reserve an easement for the benefit of other properties.

It lies in grant. Cannot arise accidentally, has to be given.

1: Statute

2: Express grant/reservation

3: Implied grant/reservation

4: Prescription

In the past: Colonisation of Ireland

In the present: State bodies given right of way or easement to lay piping.

Created by parties to a land transaction.

Grant

Individual granting another in neighbouring land some easement. Prior to 2009, needed words of limitation (and his heirs in fee simple). No longer any need as of s 67(1).

Reservation

A selling land to B. A can reserve easements to be enjoyed by her over the land sold to B. s 69, no longer any need to grant/re-grant or execute to uses to make a reservation of the easement.

Possible but rarely recognised, Dwyer Nolan Developments v Kingscroft Developments Ltd

1. Necessity

Wong v Beaumont Properties Ltd. Smells from restaurant part of lease, needed bigger vent.

2. May not derogate from grant

Wong v Beaumont again.

3. Wheeldon v Burrows

Now arises from s 40 of the LCLRA. Easements necessary to the reasonable enjoyment of the property granted. Changed to i) necessary for reasonable enjoyment ii) reasonable for both parties to have assumed it was included at the time of disposition.

4. s 6 Conveyancing Act 1881, s 71 LCLRA

Conveyance conveys all advantages, easements, liberties and rights appertaining or annexed to the land. Doesn't elevate a licence someone had to do something now and again into an easement.

Usually only arises for licences, but was used for an easement for light in Annally Hotel v Bergin.

Sometime in the past, the easement was granted in a document which cannot now be produced. Court will presume, on proof of long enjoyment that there was once a grant of an easement. Must satisfy that it was an easement and that she openly exercised it w/o force or violence continuously as of right.

Continuous? Orwell Park Management Ltd v Henihan & Anor. Herbert J said it doesn't mean incessant, but suggested to the owner that it was on her goodwill or was because of a right.

Old rules still relevant until December 2021( s 38). Where period of use was close to complete before 2009 commenced, can rely on old law. After 2021 it's all new law.

i) Common Law Perscription

Abolished by s 34. Where there has been uninterrupted use for more than 20 years, it presumes grant was made before time and memorial - this means before 1198 Extreme position - can be easily rebutted by evidence that the user/building didnt exist in 1189

ii) Lost Modern Grant

Abolished by s 34. Orwell Park Management v Henihan & Anor. Based on presumption that there was an easement in the past that has been lost - critics say that this is a fiction. Deals with situation where there hasn't been a grant prior to 1189. 20 years uninterrupted user -presumption that is rebuttable - can only say that such a grant was impossible e.g. that servant owner was a minor.

iii) Prescription Act 1832

Wylie argues that it will continue to apply during the 12 year transition period. Mee and Pearce argue that since it is not explicitly mentioned in s 38 it can no longer form a basis for a prescription claim.

1. Relevant User Period

The applicant must show that he is the “dominant owner” which is that he is the owner of the dominant land and is the “user as of right” which is that he or his predecessors have for the appropriate period used the dominant land “without force, secrecy and without the oral or written permission of the servient owner”. This user must be “without interruption” for a continuous period of at least one year. This means that there has been no interference with or cessation of use or enjoyment of an easement or profit a prendre for that period.

s 33 12/30/60 years non-state/state authority/foreshore .

and 35(2) (Court authority) of LCLRA. Interruption has to be for a year.

2. Court Order/Property Registration Authority

A):Court Order under s 35

B) Property Registration Authority s 41 Civil Law Act 2011. Just means the person can apply to have it registered if they succeed under the LCLRA.

3. Incapacity.

s 37, protects servient owner who by reason of mental incapacity is incapable of managing her affairs at the commencement of or during relevant user period. Running of period is suspended during the incapacity until the incapacity ceases. This is different from interruption(property owner preventing relevant user period from achieving completion). 30 year max.

4. Tenancies

s 36. Where dominant owner gets a prescription easement and only has a tenancy, the easement attaches to the land and passes to the landlord when the tenancy ends.

s 39.

12 years continuous period of non-use of an easement by prescription or implied grant/reservation unless it's protected by registration in registry of deeds.

Court has jurisdiction to declare an easement, however acquired, to be abandoned or extinguished.

Has retrospective effect

Against:

Bland, “A HopelessJumble: The Cursed Reform of Prescription”

Tomás Bailey,“Stuck in the Past—The Failure of the Land and Conveyancing LawReform Act 2009 toModernise the Law of Easements in Ireland”

-Did well in abolishing archaic concepts of Common Law Prescription and Lost Modern Grant. Greater clarity in prescription.

-Ultimately felt prescription should have been abolished as it's incompatible with a modern system of e-conveyancing.

Law Reform Commission Report on the Acquisitionof Easements and Profits a Prendre by Prescription 2002

Proposed reform to prescription rather than abolishment.

'Unjust to allow an individual substantial property rights due to stealthy trespassing'.