LAND LAW- EASEMENT A NEW UPDATED VERSION
LATEST 2023 (PROMBLEM QUESTION AND ANSWER)
Phipps v Pears - ANSWER: - The leading case in negative easements:
An easement is a proprietary right, and can either be negative or positive- however,
they are primarily positive in nature as negative easements are now discouraged and
restrictive covenants are preferred instead.
Re Ellenborough Park - ANSWER: The leading case set out 4 characteristics of an
easement:
1) Must be dominant and servant tenement 2)Dominant and servant owners must
be different persons
3) The easement must accommodate the dominant tenement
4) The right must be capable of forming the subject matter of a grant
Ackroyd v Smith - ANSWER: An easement must be appurtenant to the land and the
benefit must be to the land and not to the owner of the land. (req1)
Hill v Tupper - ANSWER: The easement must confer an advantage/ benefit on the
dominant tenement itself- not merely a personal benefit (req3)
Harris v Flower & sons - ANSWER: The benefit of an easement is limited to the
dominant land and cannot be used to benefit other land (req3)
Re Ellenborough Park - ANSWER: The easement may accommodate several
dominant tenements (req3)
Peacock v Custins - ANSWER: If the easement is accommodating the dominant
tenement is a matter of interpretation of the scope of the individual easement
concerned, and cannot be used to benefit other land that the dominant tenement
owner has (req3)
Moody v Steggles - ANSWER: A commercial benefit derived from the right will not
always bar that right from being an easement, it was said that the necessary
enjoyment of land may include conducting business upon it (req3)
Re Ellenborough Park - ANSWER: Purely recreation/ leisure use is not sufficient
(req3)
City Developments Pty Ltd v Registrar General of the Northern Territory - ANSWER:
However, court may take a more relaxed view to leisure nowadays (Australian case)
(req3)
Mulvaney v Jackson - ANSWER: Communal garden was held to accommodate the
dominant tenement (req3)
, Re Ellenborough Park, Colls v Home & Colonial Stores Ltd, Bailey v Stephens -
ANSWER: Must be some physical link between the tenements (physical proximity).
However, there is no need for the dominant and servant tenements to be attached,
as long as there is some reasonable neighbouring. (req3)
Wright v Macadam - ANSWER: It is sufficient if there is diversity of ownership and/or
occupation-e.g. freehold owner lets part of the land and the tenant is granted the
right to use a right of way over the other part of land belonging to the landlord.
Although, in both cases there is common ownership, nonetheless there is diversity of
occupation. (req2)
Hunter v Canary Wharf Ltd - ANSWER: The difficulties of defining, right to a view, to
privacy, to the natural flow of air and the right to receiving a tv signal is not definite
and fails this requirement (req4)
Chaffe v Kingsley - ANSWER: A claim to the right to construct a road and then to have
a right of way over that road fails as there was no degree of certainty as to the
extent of the right or as to the area of land affected (req4)
Bass v Gregory - ANSWER: The more detailed the more likely it is to suffice, such as
the right to the passage of air through a defined channel
Allen v Greenwood - ANSWER: The more detailed the more likely it is to suffice, such
as the right to receive light to a window or greenhouse
Rance v Elvin - ANSWER: The right must be within the general nature of rights
recognised as easement. Generally, no new easements will be accepted if they
require expenditure the servient owner (burdened) to incur expenditure or impose a
positive burden on him her
Jones v Pritchard - ANSWER: The existence of a right of way imposes on the servant
tenement owner no obligation to carry out necessary repairs work
Transco Plc v Stockport MBC - ANSWER: However, the dominant owner may enter
the servant land to repair the right of way at her own expense
Crow v Wood - ANSWER: Fencing on a farm to keep the sheep strayed onto the land
was seen as an exception. Held that there was an easement even though positive
expenditure of money was required
Phipps v Pears - ANSWER: no new easements will be accepted which restrict the
servant owner in the use of his/her land i.e. negative easements. CA refused in this
case to recognise the right as an easement, thought it was more appropriate that it
was dealt with by the law relating to covenants.
Wright v Macadam - ANSWER: CA held that the right to use a coal shed was capable
of being an easement. However, storage of this type appear to amount to exclusive
LATEST 2023 (PROMBLEM QUESTION AND ANSWER)
Phipps v Pears - ANSWER: - The leading case in negative easements:
An easement is a proprietary right, and can either be negative or positive- however,
they are primarily positive in nature as negative easements are now discouraged and
restrictive covenants are preferred instead.
Re Ellenborough Park - ANSWER: The leading case set out 4 characteristics of an
easement:
1) Must be dominant and servant tenement 2)Dominant and servant owners must
be different persons
3) The easement must accommodate the dominant tenement
4) The right must be capable of forming the subject matter of a grant
Ackroyd v Smith - ANSWER: An easement must be appurtenant to the land and the
benefit must be to the land and not to the owner of the land. (req1)
Hill v Tupper - ANSWER: The easement must confer an advantage/ benefit on the
dominant tenement itself- not merely a personal benefit (req3)
Harris v Flower & sons - ANSWER: The benefit of an easement is limited to the
dominant land and cannot be used to benefit other land (req3)
Re Ellenborough Park - ANSWER: The easement may accommodate several
dominant tenements (req3)
Peacock v Custins - ANSWER: If the easement is accommodating the dominant
tenement is a matter of interpretation of the scope of the individual easement
concerned, and cannot be used to benefit other land that the dominant tenement
owner has (req3)
Moody v Steggles - ANSWER: A commercial benefit derived from the right will not
always bar that right from being an easement, it was said that the necessary
enjoyment of land may include conducting business upon it (req3)
Re Ellenborough Park - ANSWER: Purely recreation/ leisure use is not sufficient
(req3)
City Developments Pty Ltd v Registrar General of the Northern Territory - ANSWER:
However, court may take a more relaxed view to leisure nowadays (Australian case)
(req3)
Mulvaney v Jackson - ANSWER: Communal garden was held to accommodate the
dominant tenement (req3)
, Re Ellenborough Park, Colls v Home & Colonial Stores Ltd, Bailey v Stephens -
ANSWER: Must be some physical link between the tenements (physical proximity).
However, there is no need for the dominant and servant tenements to be attached,
as long as there is some reasonable neighbouring. (req3)
Wright v Macadam - ANSWER: It is sufficient if there is diversity of ownership and/or
occupation-e.g. freehold owner lets part of the land and the tenant is granted the
right to use a right of way over the other part of land belonging to the landlord.
Although, in both cases there is common ownership, nonetheless there is diversity of
occupation. (req2)
Hunter v Canary Wharf Ltd - ANSWER: The difficulties of defining, right to a view, to
privacy, to the natural flow of air and the right to receiving a tv signal is not definite
and fails this requirement (req4)
Chaffe v Kingsley - ANSWER: A claim to the right to construct a road and then to have
a right of way over that road fails as there was no degree of certainty as to the
extent of the right or as to the area of land affected (req4)
Bass v Gregory - ANSWER: The more detailed the more likely it is to suffice, such as
the right to the passage of air through a defined channel
Allen v Greenwood - ANSWER: The more detailed the more likely it is to suffice, such
as the right to receive light to a window or greenhouse
Rance v Elvin - ANSWER: The right must be within the general nature of rights
recognised as easement. Generally, no new easements will be accepted if they
require expenditure the servient owner (burdened) to incur expenditure or impose a
positive burden on him her
Jones v Pritchard - ANSWER: The existence of a right of way imposes on the servant
tenement owner no obligation to carry out necessary repairs work
Transco Plc v Stockport MBC - ANSWER: However, the dominant owner may enter
the servant land to repair the right of way at her own expense
Crow v Wood - ANSWER: Fencing on a farm to keep the sheep strayed onto the land
was seen as an exception. Held that there was an easement even though positive
expenditure of money was required
Phipps v Pears - ANSWER: no new easements will be accepted which restrict the
servant owner in the use of his/her land i.e. negative easements. CA refused in this
case to recognise the right as an easement, thought it was more appropriate that it
was dealt with by the law relating to covenants.
Wright v Macadam - ANSWER: CA held that the right to use a coal shed was capable
of being an easement. However, storage of this type appear to amount to exclusive
