EASEMENTS Characteristics of an Easement 1. There must be a dominant and servient tenement 2.

Easement must accommodate the dominant tenement Re Ellenborough Parks DT houses and ST park Phillips v Halliday- DT house and ST pew in church Hill v Tupper- easement cannot be granted only for personal benefit of DT 3. Dominant and Servient tenement must not be owned and occupied by the same person. Note doctrine in Wheeldon v Burrows Easement must be capable of forming subject matter of the grant. (i) Right must be within general nature of rights capable of being created as easements Re Ellenborough Park (ii) Right must be sufficiently definite Browne v Flower- no easement of privacy Webb v Bird- no easement of wind; to vague and uncertain Right must not substantially deprive ST of possession.

4.

(iii)

Copeland v Greenhalf- D used to park/repair vehicles on strip held to be virtually a claim to possession of ST; to uncertain and extensive to be an easement. Grigsby v Melville-right to occupy cellar in Ps house not an easement BUT Wright v Macadam- right to store coal in shed was easement. SPECIAL NOTE ON PARKING Newman v Jones-Right to park car anywhere in a large area not a claim to possession of any space, and is an easement. A right to park a car in a particular reserved space amounts to a claim to possession of the entire servient space, and cannot be an easement.

Bachelor v Marlow- Right to park 6 cars on Ps land for 9 hours M-F prevented P from using his land and made ownership illusionary; not an easement. Per Baker J in London & Blenheim Estates Ltd: 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.

5.

There must be a capable grantor and grantee. A company/statutory corporation cannot grant an easement. Can be no grant by a wider and fluctuating body of persons, such as a village.

Acquisition of Easements (i) Statute Sec 62 (1) of the Law of Property Act (re-enacts S 6(1) of Conveyancing Act 1881) and is identical to Section 66 of Law of Property Act (Barbados) Object of provisions is to ensure that a purchaser of land automatically acquire the benefit of easements appurtenant to the land, as well as other rights and priveleges which have been previously enjoyed by owners and occupiers of the land. Wording wide can convert mere license into easements. International Tea Stores v Hobbes- D owned two houses and let one to tenant for business, and gave permission to pass and repass across yard in Ds possession. Tenant purchased reversion, nothing in conveyance on right of way, but it was held that he had an easement by virtue of S 6 of the Conveyancing Act 1881. Wright v Macadam Limitations of applicaton of S 62(1) (i) Right claimed must be capable of being an easement and must be recognised by law as such.

 Green v Ashco Horticulturalist Ltd- right of way limiting use of passageway inconsistent with easement of way, which can be exercised at any time. (ii) Need some diversity of ownership or occupation of DT and ST prior to conveyance. Sovmots Investments Ltd v Secretary of State for the Environment- At all times Sovmots owned entire complex and no part of it had been occupied by anyone else. (iii) There must be a conveyance in the land. Wright v Macadam- Conveyance included deeds of conveyance and leases by deed and tenancies made in writing. Rye v Rye Oral tenancies and agreements to lease Re Ray not included. (iv) S 62 may be excluded by express exception in conveyance. A clause should be inserted in the conveyance excepting from it any advantages, privileges or licenses hitherto enjoyed in respect of the land sold. David v Stollmeyer Ltd no reference to supply of water in the lease. Appellant therefore acquired right to the normal supply of water from the respondents premises. B. By Grant or Reservation

(i) Express Grant No special form of words required provided that the extent of the easement and the description of the DT and ST are reasonably clear. (ii) Express Reservation Owner sells part and retains the rest, and wishes to reserve an easement over the land sold in favour of the land retained. At common law, vendor cannot reserve for himself any easements over the land sold. Under statute S 65(1) of the Law of Property Act (S 69 Barbados) this can be done. Johnstone v Holdway - vendor reserved right of way at all times and for all purposes (including quarrying) (iii) Implied Grant Although a person cannot have an easement over his own land, there is nothing to prevent a purchaser of land from acquiring an easement over other land retained by the vendor.

Three categories of implied easements: (a) Necessity Arises when land sold completely surrounded by the land retained by the vendor, or by the retained land and land of a 3rd party. Unless a right of way is implied over the surrounding land, the purchaser would have no access to and from his land. Lush v Duprey- An easement of way will be implied over the quasi-servient tenement Crooks v Browne- In registered land, the omission to indicate the landlocked parcel and the proposed right of way on the certificate of title of the servient land does not prevent an easement of necessity from arising. Wong v Beaumont Property Trust- P entitled to put up ducts on Ds building, since covenants in lease relating to the carrying on of the restaurant businessnot to cause a nuisance by odours and to comply with Public Health Regs could not be performed without the ventilation duct. Necessity will be implied in a conveyance only where without such an easement the property could not be used at all. Boisson v Letrean- No easement of necessity where there was a means of access, albeit over mountainous and difficult terrain. Per Hamel Smith J: If other means of access exist, no matter how inconvenient, an easement of necessity cannot arise, for the mere inconvenience of an alternative way will not itself give rise to a way of necessity. MRA Engineering Ltd v Trimster Co- No easement of necessity in the form of a driveway for carsthere was access over a public footpath. Lack of access by car made the use of the quasi-DT more difficult and inconvenient, but not inaccessible. Lush v Duprey- right to a way of necessity limited to its use for all purposes appropriate to or connected with his business. Per Wooding CJ: the convenience to be afforded

by a way of necessity (b) (c) C. Intended easements Easements within the rule of Wheeldon v Burrows Prescription