Easement

(A) 4 characteristics of easement

a. There must be dominant and servient tenement (i.e. 2 pieces of land)
i. The dominant land has the benefit of the easement;
ii. The servient land is subject to the easement
1. Note that owners of units in a co-owned multi-storey
building do no have easements against each other’s unit.
(Chiu Shu-choi v Merrilong Dying Works Ltd (1984) HKC
535 CA)

b. The dominant and servient tenement must be in separate ownership;

c. The right must accommodate the dominant tenement; and

i. The easement must benefit the land (i.e. improve the usefulness or
amenity of the land) but not merely for personal advantage (Re
Ellenborough Park (1956) Ch 131)

d. The right must be capable of forming the subject matter of grant

i. The right must be clear and certain, specific and definable;
ii. There must be 2 ppl capable of granting and receiving the
easement (e.g. not the general public)
iii. There must be no positive burden on the owner of the servient
tenement (i.e. no requirement for expenditure or other positive
action).
1. Exception: an obligation to maintain a fence (Jones v Price)

(B) Examples of easement:

a. A right to hang a sign advertising a pub. (Moody v Steggles (1879) LR 12
Ch D 261)
b. A right to park a car, but not if it would leave the servient owner unable to
use his land reasonably. (London and Blenheim Estates Ltd v Ladbrooke
Retail Parks Ltd (1994) 1 WLR 31)
c. Rights of way and rights of water and drainage.
d. A right of light or air through a defined channel (Hunter v Canary Wharf
Ltd (1997) 2 All ER HL)

(C) Examples of rights NOT being an easement:

a. Rights to storage (in general, not an easement) (Grigsby v Melville (1972)
1 WLR 1355) But in Wright v Macadam (1949) the right to store coal was
held to be an easement.
b. Right to receive television signals
c. Right to view
d. Right to protect from weather because it restricts the servient owner’s use
of the land.
(D) Creation of legal easement
a. By express grant: by deed and for a term of year (CPO s2)

b. By implied grant:
i. CPO s16 presumes easement and other rights enjoyed with the land
passes to the assignee
1. There must be an assignment by any instrument, e.g. lease
in writing
2. Separate ownership is required;
3. The rights need not be continuous and apparent
4. The right must be enjoyed by the owner at the time of the
lease or assignment.

ii. The rule in Wheeldon v Burrows in an agreement to lease states

that below rights will pass to the grantee:
1. Continuous and apparent easements (means permanent and
its existence must be apparent on inspection); which are
2. Reasonably necessary for the enjoyment of the property
granted (i.e. the right facilitates the ordinary enjoyment of
the property); and
3. The right must be enjoyed by the owner at the time of the
lease or assignment.

iii. Implied intention: easement of necessity

1. This is a right without which land would be useless.
(Manjang v Drammeh)

iv. Common intention : easement necessary for the use of the land
contemplated by the parties (Wong v Beaumont Property Trust
Ltd)

c. By prescription: easement acquired by long use

i. The law presumes that there was a valid grant but somehow lost.
ii. Nevertheless, the right had been exercised since time immemorial,
> 20 yrs (for rights to light) or 40 yrs (for other rights) under the
English law.
iii. It cannot be used secretly, by force or with permission.
iv. Acquisition by prescription is applicable to HK (Chan Tin Yau v
Tsang Kwok Kay (2008) 4 HKC 209)

(E) Creation of equitable easement

a. If no deed but with written instrument of agreement to lease or assign/
memorandum signed by the party to be charged  rule in Walsh v
Lonsdale might apply.
b. Oral contract + part performance by the plaintiff and was known by the
defendant which pointed to the existence of the contract
 c. Proprietary estoppel (ER Ives investment Ltd v High (1967) 2 QB 379)
d. It is unregisterable and is void against subsequent bone fide purchaser for
value of a legal estate without notice of a prior equitable interest.

(F) Remedies
a. Damages, injunction and declaration
b. Self-help with notice from dominant owner to servient owner. The
dominant owner must cause as little disruption as possible and avoid
causing unnecessary damage (Navagation Co v Lamberg Bleaching and
Furnishing Co Ltd (1927) AC 226)