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11 Cards in this Set
- Front
- Back
DEF 'easement'
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An incorporeal hereditament - comprises certain proprietary rights that so. may enjoy over a neighbour's land
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'Wall v Collins' per Hooper LJ
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Without Es it would be "very difficult if not impossible" to enjoy the benefits of land ownership
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Capable - created
Formalities |
Legal E: gen. a deed (+ poss. registration)
Equitable E: gen. an enforceable written instrument, or a PE claim IF FAIL: no E; only a personal licence |
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'Re Ellenborough Park' per Evershed MR
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Characteristics of an E:
1) D & S tenement 2) Separation 3) E accommodates (= benefits) the D tenement 4) The E is capable of forming the S-M of a grant |
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1) D & S tenement
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• Unlike profits, Es cannot exist 'in gross'
• Both the D & S tenements must be identifiable at the time of creation of the E: - 'London & Blenheim' - 'Gillett v Holt' |
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2) Separation of D & S tenement
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• Need separation ownership OR occupation - 'Roe v Siddons'
• If come into same O and O, the E is extinguished • If come into same occupation but not ownership, the E is suspended for that period - 'Canham v Fisk' |
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3) E accommodates the D tenement
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• Must confer a benefit on the LAND, not just on the owner
Guidelines • Proximity: although don't need to be adjacent - 'Bailey v Stevens' • Not purely personal: contrast - 'Hill v Tupper': boater could run his business anywhere; benefit to him, not land - 'Moody v Steggles': sign benefitted the trade of the (immobile) pub - 'Banstead Golf Club': merely personal right didn't accommodate; no E • Not recreational use: although poss. if certain/defined - 'Re Ell. Park': enhanced the properties |
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4a) Capable of forming the S-M of a grant
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DEF: the E is capable of being expressly conveyed by deed
a) Capable grantor and grantee b) Right is sufficiently certain - 'Lawrence v Fen Tigers': right of speedway team to make noise was too uncertain - 'Hunter v Canary Wharf': no right to a view c) Within the gen. nature of rights recognised as Es -- Allows judicial discretion/flexibility -- Ensures incremental development BUT: 'Dyce v Hay': L. Leonard: conceptions of Es "must alter and expand with the changes that take place in the circumstances of mankind" EG: no financial expenditure - HL Sct 'Moncrieff v Jamieson': L. Scott (obiter): no E to use swimming pool EG: no new negative E's - 'Phipps v Pears' (weatherproofing); 'Hunter v CW' EXCEPTION: 'Crow v Wood' (fencing) |
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4b) Ouster principle
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OUSTER PRIN.: conflict:
- HL Sct 'Moncrieff v Jamieson': L. Scott (obiter): an E can substantially interfere w/the S tenement, so long as isn't exclusive possession - CA 'Batchelor v Marlowe': no E which substantially interferes --> No E to park several cars; impact too great Law Comm'n: unclear should employ a 'reasonable use' test BUT: NB: 'Virdi v Chana': followed 'B v M', but found that E of parking was reas. |
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Public policy
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Not openly discussed, but NB fund. prin. of land alienability
- 'Platts v Crouch': w/o E to moor boats, the land would have been commercially unviable |
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Easements - example cases
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PARKING
- HL Sct 'Moncrieff v Jamieson' - CA 'Batchelor v Marlowe' - 'Wall v Collins' STORAGE - 'Wright v Macadam' - 'Copeland v Greenhalf': too onerous USE OF A GARDEN - 'Re Ellenborough Park' - 'Mulvaney v Jackson' (Although a mere right to wander doesn't accommodate the land) |