Some Easement Types
Terms of Easement Grant
The terms of the easement depend on the deed which grants it, the circumstances in the case of implied easements and the nature of the established long use, in the case of acquisition by prescription.
Rights of way vary, from rights of way by foot to rights of way for large vehicles and equipment. Various expressions and terms have been used to describe the various types of ways such as footway, bridleway, cartway. These are labels only and do not necessarily describe the extent of the rights.
Rights of way may be limited and may be subject to conditions. They may, for example, be limited to certain hours. There may be obligations to close gates. There will generally be a limit defining the type of vehicle or means of passage.
Extent of Easement
The physical extent of the right of way may determine its limitations. The limitation may be as to the extent of land that may be used, the extent of traffic and the degree of use which may be permissible. The nature and extent of the right of way is interpreted by reference to the land which it benefits and the type of use or requirements of that land, for the right of way.
A right of way granted for a single house and lands is unlikely to extend to an entire housing estate on the land. This would be overuse or a surcharge on way beyond its extent and would be likely to be an excessive user. An excessive user is improper and unlawful.
A grant of an easement may be made “for all purposes”. This may allow a considerable increase in its scope in the future. This does not mean it may be used for all purposes whatsoever, outside the contemplation of the parties to the grant. The amount or frequency, the extent of traffic and the width of the way are all critical elements as to the extent of the right. This context will still define the scope of the grant, even it is made in apparently unlimited terms
The extent of a grant is ultimately a question of interpretation of the relevant deed. This is a question of law for the court. The court will have regard to the entire circumstances in which the deed was made, in ascertaining the intention of the parties. This includes the physical position of the way concerned. This will frequently show the obvious intention of the party, in the context of the grant.
Implied and Prescription Easements
A common limitation is that of use for pedestrians or for particular classes of vehicle only. If the way cannot, and is not expressly intended to accommodate vehicles, it is unlikely that a grant would be interpreted to extend to them, in the absence of clear words which so require.
A grantee/buyer may readily acquire an easement by implication or necessity, over land retained by the seller, where this is required for the enjoyment of the land which he has purchased. However, in the case of a grantor /seller who retains land, the onus is on him to reserve such easements as he requires. He will be entitled to the benefit of an easement, only where it is required of necessity. In the circumstance, the easement will be interpreted narrowly to the extent necessary to alleviate the necessity.
Where the easement is acquired by prescription, the extent of use showing the period determines the extent of the right of way. However, the courts will take account of the development of new modes of traffic as occurred with the invention and spread of the motor vehicle. Where there was a right of way for horses and cars, this generally extendeto mechanicallyly propelled vehicles.
Variation
Where the full extent of way has not been used during the prescription period, then this will not necessarily limit the way to the area used. There may be an increase in the use and frequency of use of the way. An increase in numbers by itself is noan t excessive user. Use becomes excessive when there is a change to the nature of the right.
A right of way will generally have two ends. It need not end on the land served. The route, its start and end must be reasonably well-defined and certain. Commonly there would be a well-worn path or physical roadway.
Where the way has been blocked, the owner of the right will usually be entitled to deviate onto other land of the owner in order to pass. He will also have a proprietary right to enforce the free passage consistent with the right, by court action an in some circumstances by self help means.
The reasonable use of the land affected consistent with easement may require variation from time to time. The terms of the easement may allow a change or deviation. The owner of the easement is not obliged to accept an alternative new route. However, there may be cases where the servient tenement owner may require the route to be altered.
An agreement to substitute a new way, does not of itself interrupt continuous use for the purpose of prescription. However, a change in the nature or quality of the way, may have this effect.
The deed may specify the terminus on either end. However, in the absence of this, the user of the way is not obliged to select a single point of access. However, he may not restrain the servient owner from fencing and making proper arrangements for himself, including providing an alternative point of access from time to time.
Interference with Rights
An obstruction of a way must be substantial and real, in order for the dominant tenement owner to maintain proceedings for interference with the easement. He must generally show that the servient owner’s use of the land is unreasonable to the detriment of his easement rights. The question of whether the obstruction is real and substantial is one of fact.
The erection of a gate may or may not be an interference. In many cases, it will be not be inconsistent with the right of way. Each case is dependent on its own circumstances. The gate may be accord with the reasonable requirements of the servient tenement owner. If an owner requires that a gate be closed so that his animals do not stray, this is unlikely to be an unreasonable interference with the way.
The benefit of the right of way is generally enjoyed by the occupier of the dominant land. It is not personal to its owner. He may authorise the use by others, including his tenants, licensees, guests, family members etc. The use however must be consistent with the terms of the grant.
A right of way may include a right to park for the purpose of loading and unloading. However, a right of way of itself, does not entail a right to park. A right to park may be the subject of an independent grant of easement. Express rights to park are commonly granted in the context of multi-unit development, with shared facilities.
Public Right of Way
A public right of way is one enjoyed by the public generally or a by a section of the public. It ay be established by showing use since time immemorial. It may arise by express or implied dedication to the public and acceptance. Public rights of way do not arise by prescription. However, long use may found a presumption of dedication.
A public right of way may be dedicated for limited purposes or may subject to conditions, in much the same way as a private right of way Similar consideration arise. A road authority may declare a road over which a public right of way exists to be a public road, and thereby assume responsibility for its maintenance.
Interference with a public way or highway is a misdemeanour. It also leads to civil liability for public nuisance. However, only persons who have suffered special damage greater than the public generally, are entitled to maintain a claim for public nuisance.
The Attorney General may take legal action to enforce public rights of way.
Right of Light
There is no general right to air, to light or to a view. A person has no right to light through a particular window, unless he has acquired an easement of light for that particular window over adjoining property.
Easements of light may be expressly granted. They may be granted in effect, by means of restrictive covenants.
Rights can be established by long use. Such rights are sometimes described as “ancient lights”. The right must be enjoyed as of right, and not by some precarious basis such as by consent of an adjoining owner.
A right of light exist only for the benefit of a building. It may not exist for the benefit of a garden or other open space. The protection is for the light passing through a particular window, skylight or other opening.
The right of light covers light, warmth and other incidents of the light. It applies only to natural light. The right of light is not affected by the fact that the window is behind a glazed roof.
Interference with Right to Light
As with easements generally, legal action may be taken, only if there is a substantial interference with the right. Formerly, the right was treated akin to one protected by an action in trespass, so that any interference could be the subject of legal proceedings. However, the modern view is that the interference must be substantial, akin to the requirement for an action in nuisance.
The interference must be such that it is an interference with the comfortable use and enjoyment of the right. The courts will take account of other sources of light. The existence of artificial light will not remedy the deprivation of light. If the premises are already quite badly lit, any deprivation would constitute a substantial interference.
The light need not be direct. It may be reflected through other glazed surfaces, mirrors, white tiles or other reflective surfaces.
The right may enable protection of natural light in a room or part of a room, notwithstanding that it is otherwise lit.
At one stage, there was a rule of thumb that if the interference left at least 45° of unobstructed light, it would not be actionable. This is not a strict rule of law.
If a user, such as a business premises, uses a greater degree of light because of the nature of his business, he would be entitled to the degree of illumination to which he is accustomed and has beneficially enjoyed for the benefit of his business. The extraordinary or unusual degree of use must be known to the owner of the affected land, during the period of acquisition.