⇒ This requirement has a number of sub-rules that must be complied with before the right can qualify as an easement:
⇒ This sub-rule means that any right that is merely recreational cannot exist as an easement.
⇒ Re Ellenborough Park:
⇒ In Re Ellenborough Park, Evershed MR held the right to "full enjoyment of the pleasure ground" capable of amounting to an easement.
⇒ Evershed MR contrasted the right before him with the "indefinite and unregulated privilege" of "wandering at will over all or every part of another's field or park" → so, this phrase would probably fail to be an easement due to bein too wide/vague.
⇒ In other words, a right that is so extensive it deprives the servient owner of their possession or ownership of part of their land cannot exist as an easement.
⇒ Rights granting a use of land which is clearly demarcated and limited easily satisfy this rule (i.e. can amount to an easement) e.g. the right to use a loo.
⇒ BUT, in Copeland v Greenhalf (1952) the right was NOT satisfied:
⇒ In Grigsby v Melville (1974), the High Court considered whether "an easement of unlimited storage within a confined or defined space (a cellar) is capable of existing as a matter of law" → it was held that the right was too extensive to be an easement.
FOOL-PROOF methods of obtaining top grades
SECRETS your professors won't tell you and your peers don't know
INSIDER TIPS and tricks so you can spend less time studying and land the perfect job
We work really hard to provide you with incredible law notes for free...
The proceeds of this eBook helps us to run the site and keep the service FREE!
⇒ In the above cases, there is little guidance as to when a right crosses from being okay to being too extensive.
⇒ The court has developed 2 alternative and competing tests for determining whether a right satisfies this sub rule: the 'reasonable use' test and the 'possession and control' test.
⇒ The 'reasonable use' test:
⇒ The 'possession and control' test:
⇒ Which test represents the law?
⇒ What test should represent the law?
⇒ In other words, it cannot be a negative easement (unless it is one of the four below).
⇒ The requirement explained:
⇒ The law recognises only four kinds of negative easement:
⇒ It was held in Phipps v Pears (1965) that no other negative easements can exist.
⇒ The requirement explained:
⇒ Also see the case of Rance v Elvin [1985].
Learn how to effortlessly land vacation schemes, training contracts, and pupillages by making your law applications awesome. This eBook is constructed by lawyers and recruiters from the world's leading law firms and barristers' chambers.
✅ 60+ page eBook
✅ Research Methods, Success Secrets, Tips, Tricks, and more!
✅ Help keep Digestible Notes FREE