Monthly Archives: November 2013

Finding men for African-American women


I watched some documentaries on the difficulty African-American women find in wedding men of their own race. There are rather more BLACK women in the United States than there are black men. This is partly because as in all Western lands the female life expectancy is higher than that of males. there is a high murder rate among black men. Over a million black men are in prison.

This problem is especially acute for bourgeois black ladies. Black people who go on to higher education are about 2/3rds female. 

Many black men marry out.

42% of black women have never married. However, some of them are living in long term relationships.

Slavery messed up the black family. Many slavewomen were raped by their masters and overseers. Growing up without a loving father was quite common in the slave era. Furthermore, slave marriages were often broken by one of the spouses by being sold down the river.

The black community in the US has had trouble recovering from this trauma. Many black men marry women of other races. Perhaps this is a status symbol because white women were forbidden fruit until the 1960s.

So what is the solution? Some women could share one man. I am not saying to perrmit bigamy but this could be done informally. There is another answer to this vexed issue. 

I have also watched programmes about Western men – chiefly Americans – going to other countries to marriage introduction events. These occur chiefly in COlombia and Russia. I am thinking of something similar for black American ladies.

 How about arranging such dating websites and marriage tours in African counties. I am thinking chiefly of West African countries since they are the kin of black America. These countries should be the Anglophone countries of Occidental AFrican. Nigeria, Liberia, Ghana and so forth. There is another reason for selecting West Africa as a destination for American women to find husbands from their own race. Southern Africa and Eastern Africa have a frighteningly high rate of AIDS. I do not judge anyone who suffers from this horrific malady. No one is a bad person from suffering this terrible illness. I am stating the plain fact. One could test men who signed up to this organisation to ensure that only healthy men were considered. The women who sign up to try and find spouses could be of any race but it is probable that the majority who do so would be of the African race. This would also bring more money to Africa in terms of company revenues and later remittances.

So much intermarriage may breed out racial differences in America and this may be no bad thing. Brazil faces severe poverty and many intractable problems. However, it does not seem to have racial animus since few can lay claim to unalloyed racial descent. 


Extent and extinguishment of easements


the extent     of an easement     depends on its mode of creation.   it it is created    by epress   grant, its extent   is dependent     upon the proper    construction     of the grant in the light     of the surrounding  circumstances  ; if       by implied      grant

it is deendent upon    the original   parties’ intentions        and if by prescription    it is depepdent upon the user i e      the use pf te land which the claiamnt has established      in his favour. although there are a fair number    of cases on this topic    it is not conceptually        difficult

apart      from by statute     , easements      may be extinguished   either    by  i       unity of possession   and ownership    or by ii       release. the former method deprives     form the principle    that the dominant    and servient    owner should be different persons.     the latter amy be     expressed or implied   ; for an        expresse release      a deed is required  at law whereas         release      will be implied    where the dominant       owner has abandoned   the exercise        of the right   with the clear intention   to rlease it  –   20 years      non use is generally     sufficienr raise   the presumption    of abandonment –      courts were traditionally      eager to presume   an intention to abandonw ehre an easemn had been unused     for 20 years without   explanation  but it now now clear that only a very simple       explanation    is need for     no use

courts are reluctant        to presume abandonment    and now recognise        that a dominant owner is not likely to abandon     such a vlaublae    property rigt which ight be most useful in the future

benn v      hardinge     1992

the court of appeal   refused     to presume an intention      to abandon    a right of way which      had gone unused   for 175   years    after the dominant    owner explained    that throughout    that period      there had been  an alternative      means of access to the land

it appears      that aS A AMTTER Of common    sense an easement will cease to exist    when it no longer benefits     the dominant  land but the test ot be satrsified is a stryc one

huckvale v     aegean hotels   1989

where ;lsad lj stated

”in the absnece     of proof of abandonment    the corut whsould be low to hold tha na esment has been extinguished by frustration       unless the evidence shows    clearly yht because         of a change of circumstances   dince the date    of the rignal    grant there   is no practical     possibility of its     ever agains benefitting    the dominant   tenement  in the manner  contemplated by that grant.”

wall v collins 2007      it was held that when a leasehd old a freehold    Esta were merged it dd not gave the effect of extinguishing     a right of way that hd been attached to the leasehold   interest.

an easement     had to be appurtenant      to a dominant tenement  ut  it necessaril   to a y praticualr  interers   for the tie  ebing

after merge of te leasehold and freehold the domain t  tenement  remained ucnagged and there as no legal impediment      to the contued enjoyment     of the easement by the occupier       for the time ebiugn that tenement

the decision  was aaklsi deals with the creation fir wasmenrt ci SWCTION sixty two    fo the LPA 1925       and the extent to WHIch  right of way may e exercise fvoer land     which was not originally part of the dimanent tenement

in kebnt v kavanagh       was also applied



although easements are proprietary rightsm this does not mean that they will automatically   be enforceable   by third parties such as purchasers of the  dominant  and   servient land

the BENEFIT of a easement will be enforceable    by the purchaser     of the dominant land since it is a proprietary right not a personal one

but the BURDEN  of an easement will only run with the land if the criteria   discussed below are followed.

it is thus not enough   to consider whether an easement   has been validly   created since    ts burden will only bind future   owners of the land to which it relates   if it has the characteristic of ”running with the land/”

it is important to know whether an easement   is legal of equitable     since there are separate rules for    each and since  equitable    easements should be protected      by registration . it is convenient  to consider   the categories    separately.



this is for comparison. 1925 LRA has been repealed.


the benefit of an easement automativall passed to a purchaser or transferee  of the dominant tenement.



note the transitional   provisions which applied  until    13 oct 2006   and protected   as overriding interest all existing easements and profits  where they affected a registerwd title wether   the easement was equitable   or legal.

it is likely after the transitional   privisions came to an ened in 2006   some easements   ceased to exist    since they were no longer overriding    and had not been protected  on the register

the position   is now that   on first registration schedule   1 para    3   provides that all  legal easements   are interests   that override   a first registration  of the servient tenement

thus legal easements   will bind the first   registered    proprietor   and all subsequent   transferees     of the servient     tenement.   where legal easements      are expressly created   after first registration   they must have been entered on the register  in order to exist, and once registered    will bind all transferees     of the servient   tenement

impliedly       created legal     easements MAY override    under schedule 3   para   3  if they are either    known to  or reasonable  discoverable by the purchaser or have been sued within a year before the purchase of the land

schedule   3 para 3     refers   only to legal easements     and legal profits. thus new equitable   easements  no longer    override  a subsequent   purchase   – celsteel reversed –    they must   be protected    by a  notice      on the register.

eventually    expressly created  easements  will only exist   once registered    electronically.



THE benefit     of both legal    and equitable    easements   will automatically    pass to a       purchaser    of the dominant tenement,  in the same way    as in registered    land

again   un relation to the burden  different rules   apply to legal and equitable easements

————– legal easements   ”bind    the whole   world ” because       they are legal rights    and so are binding upon a purchaser     of the servient   tenements

———————–     equitable easements      must be registered       as  class D   iii land    charges under  the LCA   1972      if they  Are to bind a subsequent     purchaser for the money or money;s worth      of the servient tenement      ,

the exception to this rule               is equitable     easements created   by proprietary      estoppel; see lord dennings  speech in ives    v    hugh 1967

such easements unfortunately      use the doctrine of notice     and so will bind all transferees        of the servient tenement    expect a bona fide      purchaser for value    of a legal estate in the servient tenement       who has no notice   of the easement



although  the enforceability   of easements   in registered  land  has been explained   above, some further   points are worth   making and the importance of a few should be   reinforced

under LRA   2002 easements    created by electronic  deed will be   legal easements and those created by electronic   written contracts   will be equitable.

further once electronically   conveyancing  is operational   expressly created easements  will not exist until   entered electronically   on the register  of the servient land

so it will eventually be impossible    to create easements   in registered land   at all expect electronically.

first registration     takes effect    subject   to any legal easement   or profit a prendre   LRA 2002    schedule 1     para 3

it does not matter    whether the easement     was created  formally by informal   grant or by prescription

but unregistered   rights should be   disclosed  on first registration   and protected    by a noitce

note also

————–overriding status can no longer  be claimed     for any easement created out of regustered title   after 13 october    2013    since only legal rights     override and legal status is itself      dependent upon registration  LRA  2002   and schedule 2   para 7

——————– but implied     easements   will override     even though   they can only    be detected   via their use

————————– undiscoverable   easements   will no longer override   a transfer

—————————— there was a transitional   provisions for equitable   easements which thus remained  overriding  for three years   from 13 october   2013    ; they do not require   registration   but the three year period    was intended to allow this to occur. but it was likely that some unprotected easements   will have disappeared      in october 2006    when the transitional   provisions ended   since equitable easement no longer override



a profit    is a proprietary  right to enter the land of another and to take produce    of that land such as crops, timber fish or turf, legal   or equitable.

in registered  land all prifts all overriding      interests nd under    the LRA 2002

legal profits can be registered   with their own title. a distinction   between profits   and easement as stated abovei that profits can exist in gross

ie they may bind servient  land even if the person with the benefit     does not own any land. profits can be created    in much the same ways as easements. detailed considerations of this is not in the course


Presumed grant of prescription.


where     an owner of land     has long use    of a right   over land belonging    to another then if the right is capable     of being an easement.

it may eventually    become    an easement   simply through   the long use. as it would be unfair to deprive  a person  of an easement   which he or she  has enjoyed       over a long period of time   on the grounds that there s=is no evidence   of a deed       of grant      , the law       is prepared tp presume  such a deed if certain  conditions are fulfilled.

the easement   thus created   will be legal    and the required period  of use which       must be proved depends upon     which of the three methods of prescription  is being relied upon

easements      created     by prescription   can only operate   between freeholders   and so throughout the period   of long use    both tenements    must   have been occupied   by fee simple owners.   the easemt must of course satisfy    the general requirements   for an easement    under re ellenborough   parl

this area of law  is extremely complex    and it is probably most effective    ly learnt through practice    in the analysis of the examination  style problem questions

broadly   speaking the claimant      must show  tow things that his use   has been of the appropriate   nature    and that he has acquired      the right     by one    the three      methods of prescription     described  below



THE Use       must be  as of right – ie       not enjoyed by force, secrecy   or permission –    it must be continuous   – this obviously a matter of degree –    and it must be in fee simple  – i e   by or on behalf     of a fee simple   owner against   a fee simple owner

mills v    silver

as the rationale   of the law   of prescription   lies in the acquiescence   of the servient   owner,  he should not be      bound by a kind of use    – e g secret    or infrequent  – which    he could   not reasonably   be expected    to interfere with   and as the basis of a prescriptive  claim     is immemorial      user an easement   can only be prescribed    for in respect   of a fee simple   estate

diment v foot ltd

jilgour    v gaddes



the three methods    of claiming     an easement        by prescription    which all require    a period      of continuous   use by the claimant are:

———- prescription at common law

————— the doctrine   of lost modern grant

——————– statutory prescription

both   at common law and      under the doctrine    of lost modern    grant  – based   on the fiction   that a grant was made   but has been lost – 20 years    use   –  of the right kind –    is sufficient   to raise the presumption     of a grant’

at common law      the presumption    may be rebutted      by evidence         that the particular      yse could not have been enjoyed   at all times since 1189      and under the doctrine    the presumption      may be rebutted      by evidence       that at some time dyrung the period of use      there was no person who was capable        of making the grant or no person    to whom the grant        might have been made.     the prescription act   1832       attempts to deal       with some of the difficulties    of the common law but it is a complec and badly drafted statute

note the different      effects    of the different statutory    periods       20 and 40 years    for esaements    other tha light, 30 and 60 years for easements       for profits   abnd 20 years            for easements of lights      and note also the decuctions   to be made in calculating   the different periods


————all  periods      are those before some   action in which   the claim is challenged

———————- no act    is deemedn to eb an interruption     until it has been acquiesced     in for one year that poeriod starting    once the party interrupted       had notice both of the interruption    and of the person making it


an example makes it clearer

albert has been walking over his enoighbour’s land       to get to the main road   as long as he can remember

he is now 65    . the rnoughbour    built a fence to prevent albert    from waking over his land   at some time in the past

assume   that albert   can show peaceful      open, continuous   use as of right without peromission       of neoughbour

whether labert    is prevented   from claiming an easement   by statutory [prescription  will depend upon

————- whether the interruption     caused by the fence     continued for at least  a year after albert found the fene    without albert trying   to get around the obstruction  and

—————— whether    albert has exercised    the right   for at least twneyt eyars going backwards   in time friom the date of the court action



if the doctrin   lost modern grant   us used it will be oissible for albert to argye   a continuous  20 year period    from any tie in the past, regardless of wether the fence was an interruption



the law commission    issued   a consultation   paper with proposals   for reform of easements, covenants     and profits a prendre   on 28 march    2008

among the main       problems identified    in the current  law ar ein respect of easements   the fact that some are acquired       too easily some may be difficult  to detect  and generally hrte is no means to modify them unlike  the provision    in relation to covenants

the law relating   to mpied creation is described      as begin neright straightforward or clear and acquisition    y prescription   has been widely acknowledged    to be defective       with three different     and overlapping methods     and the rpescne of aracenn provisions  in the prescription act   1832

the proposals  if implemented        would abolish       the effect   of section 62     and would be far-reaching    ins ome respects

the proposals     are discussed in detial newsletter   ion the VLE    so make sure that you are aware of them     and their potential impact   you will need to keep you eye on consultation


Implied grant.


the law is more     prepared to      imply easements   in favour    of the grantee   of land and in   addition  to easements   of necessity   and intended   easements     , easements        may pass under the rule in wheeldon v     burrows.

the rule   in this case   holds    that where a       person transfers    part of     his land to another person,     the transfer impliedly     carries   with it all easement-like      rights  – known as quasi easements – which were enjoyed and used           by the transferor before the transfer  ,  for    the benefit      of the part of the land    which has been transferred       ,

this rule is based      on the principle   that a grantor        may not derogate    from his grant, and       had the ffect of   creating easements       in situations      that fall far outside         the narrow scope    of the other   two categories         of implied       easements.

for the rule to operate       three conditions   mjst   be fulfilled.

in the first place    the easement must eb contintuous and apparent.      this ambiguous expression   seems to mean an easement   evidenced     by some makr which     us discoverable       on a careful inspection   of the premises.

profits by tgheir nature         cannot be          continuous  and apparent

secondly easement    must be necessary  to the   reasonable enjoyment  of the property   granted      even if the property  is not landlocked   and the grantee        is therefore            not entitled       to a way of necessity   , he may still be entitled   to a claim a right of way under     this rule

in determining   whether the right      claimed is necessary   to the reasonable enjoyment    of the property grnated    the court will tak into accoun the inconvenience     likely to be caused    to the servien owner

goldberg v       edwards

the easement    must have been used      by the common   owner at the time    of the grant for the benefit   of the part granted.      as a person cannot strictly   have an easement   over his own property    , the word quasi easement  is  often   used to describe   the  sort of right   which becimes and easement       under the rule in wheeldon  v burrows  upin the severance       of a tenement

it has recently     been confirmed     by the court of appeal in chaffe v kingsley     2000      that the rule in wheeldon v burrows          cannot create an easement    by implied reservation   for the retained land

in kent and another Kavanagh and another     2006      a developer   owned    tow properties     and the path that ran between the properties

he granted identical    long eases of the two properties        each lease     comprising half      the path which adjoined     the particular      property   but making no reference       to a right pf way over the other leseess half of the path. the present lessee   of one property claimed a     right og way       over the half of the path      that romed part of the other property

the Ca held    t hat the rule in wheeeldon and burrows       was inapplicable      but that reciprocal rights  of ay would be implied     to give effect to the common intention fo eh original parties.


LPA      SECTION     62

if the owner    of two   or more plots of land   conveys    by deed  one of the plots      of land      to a purchaser      , then the purchaser    will be granted       all rights which  were       previously enjoyed     with that land, even if those rights were previously   mere licences

section 62     only applies where the land is sold by deed ir registered     disposition    and can only create a   legal easement   although essentially    a word saving       provision      , this section    may  – subject to  any contrary intention –     operate  to convert consensual privileges   into easements.

it is very unlikely     that parliament intends        it to have any such effect

but section 62    had become an important           way in which easements        can be created       , particularly      as it is not subject to the same      limitations      as the rule in wheeldon v burrows

note the following points

1………………… there must     be a conveyance. this des not include an agreemnt for a lease and in such a case the rule     in wheeldon v burrows   may still be important.

goldberg    v edwards   – borman   v griffith   ; wright v macadam

2………………………. there must be   diversity   of occupation   of the two tenements  at the time of the conveyance   . the conveyance   will be made   in favour   of someone  who is in occupation    of the dominant tenement, mosty   commonly   by virtue   of a lease. the case of platt v crouch    throws doubt upon this requirement

3…………………….. the right or privileged    should ;;appertain or be reputed  to appertain” to the land  – i e be attached        to the land or believed to do so =-     or enjoyed   with the land at tge time   of the conveyance.  uf the privileged    has already been revoked  , no easement can arse through the operation of section 62

4…………………… obviously    section 62     cannot convert  into easements  rights that are in their nature    incapable   of being easements  syc as the intermittent  consensual privileged   enjoyed by the plaintiffs    in green v    aschco   horticulturist ltd

wright v macadam      is a good example    of the operation of section 62.   the defendant   leased a top storey   flat to mrs wright   and gave her permission   to store coal   in a coal   shed in   the garden  of the building. the lease   was renewed  without   anything  further being  said about the coal shed    at the time renewal      but later    the defendant demanded    a weekly rent    for the use of the coal shed     .

the court of appeal held that when the lease to mrs wright wss renewed the right  – it was a privilege –     to use the coal shed    was converted      by section 62       into an easement     since it was a right already existing   and the lease     was a conveyance.   note that of the second lease    had been to a third party    rather than to     mrs wright  or if the defendant       had sold    the flat to a third party    then section 62     would have given the benefit    of the easement    to that third party


in the recent     case of hair v gilllman andinskip  2000    the court of appeal   held that permission given to the tenant   of a building    by the landowner   to park in a forecourt         was converted    into an easement    by LPA    when the landlord  conveyed     the freehold     of the building  to the tenant.  in applying    wright v macadam  the court  of appeal   stressed   that the section   would not have had     this effect  where there was no  expectation  that the permission could be other  than temporary

p and S platt ltd   v crouch      2003      where    the owner   of a riverside      hotel   also owned      an island    in the river   which had moorings  which could be sued   by hotelguets.    when the hotel was sold  the sale di not include    the mooring   hu the purchasers   argued    that they had an easement   to tuse them under section   62       peter gibsion    LJ held    that ince the right          to use the moorings   was enjoyed   with the hotel   and by its guests    as part of its business and the rights were continuous   and apparent   there was an easement      even though       there had been  no prior    diversity  of occupation of the dominant and servient tenancies



A dream about the Ulster Troubles.


I was in Belfast. There was an IRA funeral. From some distance away a UDA sniper took aim. The IRA men came out – three of them in their green uniforms. Ironically these will have been bought from British Army surplus stores. The UDA man opened up. He felled one of the IRA firing partly and loosed off a few more rounds. SHrieks rent the air and the crowd  scattered.The people ran into a two storey building and ran up the stairs. I was there and so was someone else I know. The people piling in there were middle aged men and women. They looked aghast. I had to supress a smirk. It was a cloudy day.

Later I was on a bus in Belfast. I went right to the back. I saw some Romanian pupils of mine from my first school. There. They did not recognise me. I spoke to them in Romanian and they were surprised. They then spoke to me happily. They included Stefan that annoying egoist and Lavinia with the thick glasses and jet black hair. 

Later I was on some thickly wooded island on a river in Europe. There were little wooden boats people had built to go back and forth to the riverbank. Then there were wooden bridges. It was a camp for children.

Then there was something back plastic garlands such as one sees in India.

I watched documentaries about the Troubles lately. Further, Father Faul died recently and that made me think about the sergeants’ deaths at a funeral in 1988. It was a testament to their humanity that they did not shoot even in self -defence. You see how armed men are attacked by the unarmed. If they had shot the people closing on them they might have been said to have launched an unprovoked attack. These men could have shot those threatening them but they did. They paid with their lives for their mercy.


Examples of easements


creation of easements

an easement may exists    may exist both    at law and in equity    . the distinction    between elgal and equitable   easement   is important   since different   methods of creation  appy    to each actegory

the distinction   os also crucial   in determining   whether an easement    runs with    the lad  – ie      passes        on transfer       of either the dominant    tenement    or serivent tenement – to be enforceable     by or against    the new owner



TO exist at law   it must  be held for an interest equivalent     to an estate in fee simple   absolute   in possession   or a term of years absolute  and it must be created   by

______________ statute

_________________ deed/ registered  disposition

__________________  or prescription



easements may be held     for a period other than either a fee simple absolute   in possession or a term of years MUST bne equitable

an easement will also be equitable if it has not been created   by one of the hrrwe mthodsfor creating     legal easement

thus an easement  for   life or an easement that had ben created informally     cannot exist at law   though it may     take effect in equity

equitable easements      may be created     in a written contract   which equity regards    as specially enforceable MP MP ACT 1989

walsh v lonsdale         1882

or by proprietary estoppel

an equitable     easements   is regustrable       under the LCA    if the land is unregistered    and is scpable of entry on the land register

if the land    is registered

easement normally      come into existence     either by means of a       reservation    where eg the vendor   of the land reserves a right of way over the land sold

or by means of a gram

t     where the vendor of land    grants    the purchaser    a right of way over the retained land

both reservation   and grant mAY be either express deliberate of implied



an expressly      created     easement      will  be legal       or  equitable    depending    upon the       character    of the document    which creates   it



an express   reservation  is where the oner   of the dominant    tenement    deliberately  and expressly jeep the right for himslef  when he sells or leases prt of his land to another

a reservation  operate by way of re grant

i e the purchasr is deemed tio have grnated  the eaasmenet    to the vendor

this means  taht if there is any ambiguity   in the     definition     of the easement    which cannot be dispelled   by consideration of the surrounding      circumstances       the grant     will be construed   against the grantor   ie.   in this case     puexhSER

ST EDmundsbury    and Ipswich  diocesan    board of  finance     v calakre   no 2



express grant is fairly   self explanatory – the owner   of the servient tenement    deliberately   grant the right over his land to the owner of the dominant tenement



implied creation   will result    in a legal   or equitable   easement   de=ending upon the charatcre   of the document   into which it is implied



only trwo  instances  will easement be implied    in favour of a grantor


these occur  where the land retained   would be uselss   without the existence     of an easement   in tis favour. the typical case is where a transaction      has effectivyl   deprived      land of sutable means of access.

although it used to be thought that the principle was base dn piblic policy   it is clear since   nickerson v barracliygh   that ways of necessity      are implied from the common  intention of the parties

an eassment of necessity   is strictly   limited to the kind    of second category   since what is necessayr   to enjoy the land will usually be presiumed to be the common inteion of the aprties trasnferring  the land

it is a common mistake in exioation   answer for student to assue the necessity   includes    sotiatiosn were it is morel more difficult for the claimant to access a main road if he does not go over D ;s land

in   adealon international proprietary ltd v merton  london BC  2007      it was held that where there had been no express reservation iof a right of way and  there remained     a realistic   possibility  of alternative     access over aldn belonging   to third parties no such right of way could exist

the claimant owned land bordering   the A 24      rad and the defendant M –   owned neighbouring land         which had another road/

high path      at its northernblundayr a could not lawfully access witht he A 24       or high path     without [p;anning permission which had been refused

until 1989           the two plots   had been in common onwersghip

applying manjang    v drammeh and nickerson v barracligh    no easement   of necessity   could exist on the facts



these are easements    necessary   to give effect to the common intetnion of the parties  at the time of the grant. the scope of this category    which would see to include   easement of necessity – has been strcitkyl   limited by the courts  – see pwllbach   colliery   co ltd v woodman

re webb;s lease

implied creation of easements  by common intention is not lightly presumed   particularly where implied  reservation  is argued’ chaffe v kinglsye   1999

as a general principle if an alleged easement is vital to the parties common intention then they should have expressly   created in tin the conveyance  between them

in stafford v     lee 1993     nourse LJ    stated that an easement by common intention can exist   if there waa  common intention   between the purchaser    and vendor   of the land s to some       particular use of the lad and the easemy   is necessary    in order to give effect   to that intention

on the facts    the purchaser       wanted to buoly  a house on the land   and the vendor solid it to him for that purpose    since the only practical access for th sonctrcutiuon process    was voer the vendor’s land

it was held   that an easement for the purpose  of contrctuon had been created


Easements and profits a prendre.


this is about the rights that someone may exercise over the land vf another

these are proprietary rights      they can exist at law and in equity

it is important fr the purchaser of land to know if a third party can exercise these rights over land

the law has strict rules on easements and profits

there are rules about how these rights can be created and acquired

easements rights of way, rights ti light,    right to water

these are more important than

profits a prendre – – right to enter another’s  land and to remove soil or produce of the soil


Names and characteristics of an easement.

two neighbours  come to an agreement that   since house A has  no garden   it owner can use the garden of house B.        if the right to use the garden satisfies the test of re ellenborough park  and it is created be a specified emthd it is an easement



DEFINitions doe not cover negative ewasements

———- dominant tenement. a piece of land which ebenfit from a rigt tp do somethin on or over neighbouring land

______________ servient tenement.    a piece of land over which another neighbouring land owner has rigjts.

—————————  proft a prendre.   aright to take something from alnad belonging   to another person for example a right t take fish from a land on land belonging to another

—————— legal easement.         an easement which was reated in  manner recognise at law and which complied   with the definitionn of a legal estate. . ie is equivalent to eiother a feree   simple abslute in possession or a term   of eyars absolute.

————————- equitable easement – any other vlaid easement   including  all those created  informally. this includes   any easement  held for a period   other than eitgher   a feee   simpele absolute   in possession or a term fo eyars

an easement  confers a benefiot on a piece of land  and a correspdongin  detriment on another piece of land

benefit and the budern    apply to the land itself and are not persoanl to the people who created it

an easament is a properiety intteers in the land and can pass with the kand to new owners subject to covneyancing       and registeration    requirements

this means that orucvhaser of the labd    ay find thet atbety are  ound by sucg pore esiting third party rights

tghere isa  dififyucle trbaslance if rightsibnvolved in the recvognition of easment s     becausr thye are propeity arriufhts   capable of passing wioth the land whcigh tehy affect and dfusour tghe sevient  landoqwners   use and enojoyment of his ladn

the law is creaful   not to epxnad      the catergort   of easement s too reaidly

the      defintion   of easments   mst not ebcime   too vague     or uncetai

but on the other hand easement may be necessary   for the sue and enjoyment  of domina t land ro may be commercially   valuable   and so the law must develop   with the passing of time therefore the category  of easement must not be closed.

it is difficult    to define an easement    in a really helpful  way due to the wide ranging  and  flexible nature     of the category     and it is the fore mor usual to explain   the nature of    an easement by reference        to its essential   characteristics   and by comparison  with other similar rights

the essential characteristic s   were ste out  by the court of appeal in

RE ellenbough  park

in that case      people who owned      house a round a parl wrre ganated    the right to use it as a lesure garden   but during the eat i twas taken over     by the government.      if the house woners had been deprioved        of a legal right     then they were entiteld to cpmetation under statute.   the only possible legal right     was an easewment on the facts. eventaully         the house owners succeeded               in convincing the court      of appeal that the right to use the park was an esament      \four factors were held to      be relevant in determing whether an easament exists

the ellenborough criteria       curreny mtaintint eh balance    of roghts mentioned above and are genertally paplied    but they are fleixble    and must not b treat as of they were statutory law

most texbooks contian        lists of examples f oghts which have been held to be easements



1…………… there must be a dominant and a serivent tenement

unlike a  proft    which may exist in gorss  ie. detached from eh ownership of the land –   an es,ane cannot exist indepently of     the ownership of the land     . an easement must      be attached  appurtenant      to a dominant tenement and it pasased ion a Y TRANDSFER       OF THE LAND   F0R ANJ INTERS          APPLICATIOON   OF THIS Principle, SEE LONDON AND BELMEHAIM ESTATRE LTD        V LADBROKE REtail park ltd

the above cases  hold that the creation of easements for land  not yet identified is not possible – they cannot exist independent of the land/



the right granted   must not simply        confer a personal advantage    unconnected    with the land – it must increasew     the nroaml enjoyment        of trhe land – see hill v     tupper

thus thr eight   to ut pleasure     boats on a canl for profit was not an easemrnt isnce it was held to be a personal advantage



a person      cannot have an easment over his own land

not that the concept of a quasi easement           under the rule in wheeeldon v burrows



since an easemrny must irginaste      in a gran whether epxres or implied    pr presumed   certain condtions must be fulfilled

a……………. there must be oth a capable granto and a capable grantee

b………………… the right must be sufficiently      definte.     if te nature        and extent of th claimed riught are uncetrain it is fifcult to dertmine what could cosnisute   an interruption of such a rigt

. cases involving                  claims to cfree access    of air il;lsutrate this point

‘ bryant v               lefevetr


the rights must be withing the gebnral  aure f rigths capable of existng  as easement

although  it is often said that the list of easements   is ot closed

it seems  that while the category    iof [positive easements   is likely  expand  with changing  social and economic  conditions

the courts will be reluctant to revongise   ay enw negative easements

positive easements   are those which allow the dominant         ownee to do something in servient land    – negative easements   are tbosew which prevent change in the servient land

phipps v pears   where rhr right claimed t protection from htrw ether wa probably too indefinite to be an esaet anweya

phipps –  it appares  unlikely       that a court will recognise   new easement which    require the seriven ronwe   to spend money

it is also   unlikely hat ane asmetn  Wil ne allowed if it give the owner the domaint t tement ar right ot prevent the owner oft a servient tenement from doing something       on this own labndparly becuasrthis id the more property viewed a s s trictive covenant

in addition     to the rule that easements       must generally      not  involve the sertvient    owner    in expenditure      neither can an intermittent    consensual privilege   or  a claim   to exclusive       or joint possession  of the servient       tenement   exist as easements

one difficulty is that courts     have had in drawing he distinction    between easements    , privileges    and exclusive       possession can be seen in relation    to the sokle issue of parking cards

there have been many cases in recent years concering parking rights    or at least permission to park on the laND OF AOTHER

NOTE THAT THRE IS NIO SPECIAL INMPORTANCR TIO THE parking cases – we are simply looking    t the as a common modern illustration of problems      involved in the recognition       of easmenets      but the right to  park      has ucvase problems    since in some cases  it has been considered too extensibve   and to mcuh interference  with the servient owners   use of his own land


A dream of sectarianism and funeral.


I dreamt of Northern Ireland. Could a Catholic be a loyalist or only a unionist? This is a question I have often asked myself? I had been considering this last night. It was difficult to be one. I heard Paisley’s irate voice booming out the need to be ”loyal Protestants” as a I walked down a road. To my right was a stone wall by a steep earth bank – there were oaks on the bank. The weather was unremarkable.

Later I walked into the gate of a churchyard. People in their 30s stood there dressed mostly in black. A funeral was about to commence. I did not know who the deceased was. Some of the mourners were smoking. I recognised Richard Coates among them and Emily the crazy one – both having a fag. The church was small and pale grey. It was not handsome and may well have been a Catholic church as such churches in Ireland are usually not impressive.

I had been walking around Eton at some point in my dreamt – in the cloisters.

Proprietary estoppel continued


it is uncertain    whether a  contracual licensee     could additonally rely    on restoplle

thimpson 1983 thinks so     but brigss   1981 does not

recent cases have changed     or developed a  number of ossies in relation   to interesrs   created by estoppel

you should    make notes on the relevant         facts, decisoons     and reasoning on each of the cases     and note what was gfiven to the successful claimants    in order to give effect to equitry

sledmore v  dalby      1996    the court odf eappeal     held that    though an eqauity       had arisen in favour     of the respondent it was not ;onger ine quaitable to deafeat it due    to the ebnefirst  wjch  eh had enhouyed over the eyar AND THE PARTOES SOTUATIONS AT THE TIME OF THE ACTION

thus        though dalby      could have had an estppel inters   he was given nothing


gillett v holt         2000

the defendant   had promised   to leavethe bulk of his estate to mr gillet           and had made a will doing so

subsequentyhe changed  his  will exclduing mr gillet     whose claim in properotry estopple     succeeeded

the court of appeal rejected       the idea thatr there had to be ”diuble aqssurance”

a second promise     that the defendant     would in noncirysmatcnes    chabnge his wil\ it was ernough    that the defdedant     had behaved unconsciobaly       by withdraweing    his promise adfter the claimant   had to know knowledg relied   on it to his detriment


yaxley v gotts      1999         court of appeal    held that    even wen an agreement    relating    to lane was vpid    for want fmorality      the doctinre     of properiotraytr    estoppel    could still operate     to cpmped on of the parties   to give   effect      to a promise     made under the agreement

banner group v    luff agreements    2000


hunt      v soady     court of appeal 2007              where there  had been a  provisional            agreement    that one beneficial      tenant     in common    H    would    transfer    her beneficial interest       to the other S               proprietary  estoppel                could not operate        since a that agreement    had not been       acted on by the other party          either in good time     or ot his detriment     ; it was    not unconscionable      for H          to go back     on her  representation     , particularly     given the substantial     change   in circumstances    since the time       of the provisional agreement


holman   v howes    2007

a divorced      couple bought property       together      being optimistic     about reconciliation and occupation

they both    contributed to the purchase price             but the legal title      was put into      the sole name    of the ex husband

he then   left    the house    but the     ex-wife     continued    to live there

on application      for an order    to determine      their beneficial      shares        with the ex husband         also seeking    an order for sale   , the court       held that the assurances   had been made     that the ex-wife     could occupy      the property    for as long as she wanted

since there    was detrimental       reliance  y the    woman the requirements     of proprietary estoppel       were satisfied   and thus un order to satisfy      this equity   there should be no order   for sale without the woman’s consent


james      v thomas 2007

where there was insufficient evidence  of a common intention that j should       have a beneficial interest   in the property    and assurances made   by T to J     were vague as to the extent of any beneficial interest    which J   might expect neither        a constructive     trust interest   nor one via    proprietary   estoppel could arise

the parties had lived   together   for  15 years  in a property   held  in T s sole   name – J     had helped    T with hus business      and together    they had conducted      extensive    renovations  of the property  . the assurances   which were found    to be too vague    were that the renovations would be for the benefit of both parties    and that J would be provided   for on T ;s death


powell and benney  2007

the appellants    P       had looked     after B;s couins    H   and had improved       his properties        for their own   use    after H   became unable   to look after himself       properly      and gave them the keys          to the premises

H  had promised   the      properties          to P upon his death       but he died     intestate     due to his will being invalid

the court       held that there was not strong         enough casual    link between    the promise     and the work    carried out for   P to receive        the entire     properties   as satisfaction for the equity          while P     had incurred             some expense     in improving    the premises   they had not been required   to do so by H

thus the case was a non bargain    proprietary   estoppel claim   Jennings   v rice     applied

to transfer   the properties       to P   would be out of all proportion   to the detriment   P had suffered   and so the trial judges award   of GBP 20 000    was upheld


yeoman’s row management    lrd   v cobb   2008

the house of lord   has shownt hat the esceptions to the law of preoperty   miscellaneoyus  provions   1989

are narrower   than previously thiought

a property  developer   reached    an oral agreement in principle   with an owner to buy its property   and then spent considerable sums   in obtaining    planning permission

the owner     then refused   to   proceed      on the agreed   terms and enter   into a binding contract

the house of lords   re\versed the decision    of the court of appeal   and held that the developer    was not entitled    to a remedy    based on proprietary    estoppel or a constructive trust  byut only   to a quantum meruit    payment  for his services    in pursuing  and obtaining planning    permission

since neither party   had thought that the agreement   between them had been enforceable

Y could not be estopped from relying upon      section 2 to show    that the agreement      was unenforceable

the agreement between the parties was a gentleman’s agreement   was too uncertain  as too its terms to constitute   a contract

the lower courts   had pushed   properitry  estoppel too far


thorner   v majors   2009

rather taciturn    farmer,   called pter, died    intestate   after revoking   a prevoous   will which ahd elft   the resideu   of his estate to david the son of his cousin.

this would  have given   peter’s farm  to david   .   the wil had been revoked      apparently     because pter   had falle out with one of the legatees    to whom he had givena sum of money, and wished      to exclude him.

the only way   in which david    could now succeed      in establishing    title   to the farm    was claiming     proprietary estoppel   because  on intestacy    the farmw ould now go to pter’s close er   relatives

david assisted    peter on the farm   for almost a 30 year oeriod   woithout    being paid an income.     at no point did pter             state to david             tyhat eh would leave       any property to him        after hi death. instead    david    had tio make out his case   frm inferecnes    , this was a watershed moment  turning david’s  hope of ingerting    the   famr into epxcetion   , following       this there were a number        of other comments made by peter   which david alleged   would ony have been made to a perdson who was spected             t inherit the farm

ewith lloyd LJ    giving the leading judgement        the court of appeal   reversed   the decision   of the court        below on the basius   that fir estopopel        to succeed    in these cases     the representation        had to be clear     and unequivocal     and not drawn from   inferences

but the case   was then appealed to the house of lords  who resvered the court of appeal decison     findind tat it had been  wroing to overutn the first instabce    judge decison    the trial  judge was best     placed to assess all thr parties dealing    and all the videncve before    him

for proprietary         estoppel to succeed          ot os indeed tj case that an assurance       must be clear enough   and must relate    to identified property

both the deceased       and the claimant   understood    that the property was to be a farm in the sate as it existed at the deceased death             whatever that might be,. the precise scope  of    the       property did not need to be agree din advance .        the house of lords disntibgusiebnd      cobbe v yeoman;s row            ont he gound that in cobbe                  there had bere  no doubt as to the phsycla identity of the property           bnut there had been compete uncertainty as to the                nature of the benefit given         to cobbe

in cobbe the relationship      between teh aprties was a commercial one at arms  length                 where the parties shAS CHOSEN NOT TO ENTER INTO A CONtract AND knew THat Were not  LEGALLY BOUND T O  EACH OTHER/

YOU would be advised tor ead this case    as the jdyeg considered preperty estoppel in detail.


henry v henry                     2010

the privy council   an appeal   from st lucia   in proprietary estoppel   case.  T   bought    the land    from an elderyly   relative G     just befotre the latter’s death.    G promised     to leave the land   in her will      to C    who had    lived on it and cultivated it for eyars.     the trail jduge      hgad dismissed C’s      cliam     on the basis that her had not suffered detrriment       he had recieved          a benefit     from the land         for ovr 30 yars        and T weas registered  proprietor   who had been given        value for  thje and and so took free    of C s claim

the court of appeal   howver    did find    that C had suffered    detriment     and hence          had an equity    which bound        T as an overriding       interest,. st lucia has a similar         land registration sysrem to england and wales

on appeal T argued      that since her purchase     of the land had not been unconsciobna;e      she should not be bound by any equity     which had arisen    in favour of C

the privy     conuncil        held that the trial judfe       had misdirected      himsefl    as to detriment    by failing   to weight up C ‘s advantage     s and disadvantages   resulting   from the promise –  kennings     v rice  applied –

the court of appeal    had also been mistaken        in tis ppaorach     to detriment

hence the PC had to consdier      tyhy issue afrsh     and gound that c    HAD Deprived        himself    of better life   elsehwere       bey remaining     ont he lad

that detriment    had not been       outweighed    by the advantages    he took       from his hard life   in which he has had tos struggle to make ends meet occupying the land

the resulting      estoppel  equity       was satisfied       by awarding         C half    of T ;s share   of the plot if land

i e quarter of the total

proportionality      is at heart   of proprietary estoppel

the privy council       looked at the effect   of an estoppel         equity           on third parties

the privy council    looked at an effect    of an estoppel    equity     on third   parties    and noted    obiter    that there may   be cases   in which circumstances   of a third party   purchase   might requite    a claimant’s    equity   to be reassessed even thought     the claimant  has an overriding interest

——————— the land registration act 2020    provides   that an equity     by estoppel  ”has effect   from time the equity arises   as an interest  capable of binding   successors in title”

thus it is confirmed     that a uncystrallised   estoppel   ”equity”   can bind a transferee  if protected   as required   by normal  rules of registered   or unregistered   land

in registered land  it can be protected   by an entry    on the register    or coupled with actual   occupation  is capable    of overriding   a disposition

but once the court has granted    a remedy then whether    a transferee   i sbund   will depend   on the nature of the remedy

if a remedy is a freehold or an easement  then it will bind a trasnferee    but it it is a licence   or financial compensation   then it will not