월요일, 5월 09, 2005
home internet: still down.

family crises: not over.

exams: don't want to talk about it.

what i would like to talk about though, are the requirements for easements, as set out in Re Ellenborough Park:

1) there has to be a dominant and servient tenement (Ladbroke Retail Park)
2) the easement has to accomodate the dominant tenement (Hill v Tupper) and be of a reasonable proximity (Bailey v Stephens)
3) dominant and servient tenements have to have different owners, or failing that, different occupiers.
4) the easement has to be capable of forming the subject matter of a grant.
- the easement has to be sufficiently certain
- the easement has to fall within the category recognised as an easement

easements cannot enforce positive obligations. (i.e. those that incur expenditure)
the easement can either be permissive or restrictive (right to light, right to support from buildings.)

there is no easement in such cases: easement of privacy, right to uninterrupted tv signal (Hunter v Canary Wharf), right to view(Aldred's case), right to protection from weather from another building (Phillips v Pears)

easements can be formed by:
- statute
- express/implied grant
- express/implied reservation
- prescription

express grant: where the D is sold and the S retained. this is a legal easement created by deed, and in writing. s62 LPA - where there is permission granted for a privilege to be enjoyed, that permission matures to an easement upon conveyance. (Wright v Macadam)
express reservation: where the S is sold, and the D retained. a man may not derogate from his grant, so this operated on the system of conveyance and re-grant i.e. where the owner of the S re-grants the easement to D, the original owner of the land. s65 LPA makes this easier by allowing reservation to act as an automatic re-grant upon conveyance.

implied grant: this is only allowed in 3 very specific circumstances.
necessity - (Manjang v Drammah) necessity has to be absolute
common intention - (Wong v Beaumont Pty Trust) only if previously agreed by both parties.
rule in (Wheeldon v Burrows) - where there is one plot of land owned, and one part of the land is used to benefit the other (without division), this benefit is called a quasi-easement. when the land is eventually divided and sold, the quasi-easement may mature to become an easement. this is provided the quasi-easement is continuous and apparent (upon inspection), necessary for the reasonable enjoyment of the land, and in use at the time of sale.
implied reservations: are very restrictive, and rarely used. (Peckham v Ellison)

prescription: a way by which rights can be acquired by long use. a legal fiction.
- common law prescription: 'since time immemorial' aka 1189, or user of 20 yrs. this is ended by any evidence proving that the easement could not have been used since 1189.
- lost modern grant: assume that the easement was granted, just that it's been lost. rebutted by evidence proving that the easement could not have been made (Tehidy v Norman)
the above need to prove the user is 'as of right'. (where payment is made) case of (Gardner)
- Prescription Act 1832: short period (20yrs/easement, 30yrs/PaP), long period (40yrs/easement/60yrs/PaP) defeat is by written consent of any type.

ok i can't remember any more.