2. Easements

Question 1

What is an Easement?

What are the 2 steps?

Answer 1

An easement is the right to cross or otherwise use someone else’s land for a specific purpose.

To establish an easement:

1. Does the right qualify as an easement
2. Has it been Validly Created

Question 2

What is the 3 criteria for a right to qualify as an easement?

Answer 2

To Qualify as an easement, there are 3 essential characteristics that must be met:

1. There must be a dominant and a servient tenement , who are different people

2. An easement must accommodate the dominate tenement 

3.The right claimed must be capable of forming the subject matter of a grant (ie capable of being granted by deed)

Question 3

What is a Dominant and Servient Tenement?

Answer 3

Dominant Tenement - Is the land benefited by the easement

Servient Tenement - is the land burdened by the easement

Question 4

What is meant by the easemenet must accommodate the dominant tenement?

Answer 4

This means the easement must benifit the land rather than the owner personally, there is 3 criteria to establish accommodation of the dominant temenent:

1. Must not depend on a characteristic or the identity of the owner of the dominant tenement (eg ‘allow bobby to play on my grass”)
2. Close proximity of the 2 lands
3. Not purely recreational in nature (not strictly applied)

Question 5

For a right to qualify as an easement, the dominant and servent tenements must be owned by different people.

Does this mean a landlord can not give easements over part of his owned land to a tenant?

Answer 5

No, a landlord may give an easement to the tenant to cross over some of his land. This is still an easement as there is different occupiers despite the landlord owning both parts of the land

Question 6

For a right to be cabaple of being an easement, it must be capable of being granted by deed.

What are the 3 requirements?

Answer 6

1. Must be defined and free from ambiguity
2. The grantor must be capable of granting and the grantee must be capable of being granted too
3. It must be like existing forms of easements

Question 7

For a right to be capable of becoming an easement, it must be like existing forms of easements. What are the 3 considerations to establish it is like existing forms of easements?

Answer 7

1. Exercise caution when considering novel rights, and no new negative easements
2. Must not be too extensive / the ouster principle
3. Must be no positive burden on the servient owner

Question 8

What does ‘no new negative easements’ mean?

Answer 8

If an easement is negative, it can only be one of the already established forms.

A negative interest is one which does not require any action from the dominant owner, such as:

1. Rights of Support - Preventing an adjoining neighbour from removing existing structures
2. Rights of light - preventing an adjoining neighbour from removing existing structures.

In comparison, a right of way requires the dominant owner walking over the servient land.

Question 9

What is an easement that is too expensive / the ouster principle

Answer 9

The easement must have a a limited right or use of another land, not to ‘possess’ the land.

A key point it to ensure that the use does not completely deprive the owner of control of that land, or in cases of storage, store too much.

Question 10

When can an easement of parking exsist?

Answer 10

Where the right does not amount to the dominant tenement having ‘occupation’ and so strip the servient owner of their reasonable enjoyment of the land.

If there is only space for the dominate tenements vechiles, this is excessive.

However, if there is space for the dominant tenement owner and other users, an easement could exsisit.

Question 11

For an easement to be like exsiting easements, and so be cabaple of being an easement, there must be no positive burden on the servient owner. What does this mean?

Answer 11

The servient owner must not be obliged to do anything or spend money as a result of the easement.

The only thing the servient owner must do is allow the dominant owner to exerise their right without interference.

Question 12

What aer the 4 ways an easement can be validly created?

Answer 12

1. Expressly (By grant and reservation)
2. Impliedly (By grant or reservation)
3. By Prescription (The Prescription Act 1832)
4. By Statute (The Prescription Act 1832)

Question 13

What is an express grant and reservation in the context of an easement?

Answer 13

Grant - You will grant the right over your land to the servient tenant in the deed

Reservation - She will reserve the right to use the land herself in the deed

For an Express easement, both the grant and reservation must made by deed.

Question 14

What is an implied grant or reservation?

Answer 14

An implied grant or reservation is where there is no express words (Grant or reserve) in any legal document, but it is still an easement that can be read into the legal document

Question 15

What are the 4 ways an easement can be implied by grant?

Answer 15

1. By Necessity
2. By Common Intention
3. Under the rule in Wheeldon v Burrows (part of the land only)
4. By operation of S.62 LPA 1925

Question 16

When can an easement be impliedly granted by necessity?

Answer 16

Granted where it is necessary for use of the land, such as:

1. Rights of Support - You cannot remove adjoining walls, so an easement of support will be granted by Necessity
2. Rights of way - if the land is landlocked, and the ONLY was it through the neighbouring land, an easement of right of way will be granted by necessity

Question 17

How can an easement be impliedly granted by the Common Intention rule?

Answer 17

Where it is not strictly necessary for the use of the land, but which was clearly commonly intended between the parties and for some reason or another (usually over sight) it was not included

Question 18

How can an easement be impliedly granted by the rule in Wheeldon v Burrows?

Answer 18

This only applies where the landowner sells PART of the Land.

The purpose of the provision is to imply into any conveyance the grant of all qausi-easements

A quasi easement is the use of land which would have become an easement if the land in question had not been in the full ownership of one person.

There are 4 criteria’s for the rule to apply:

□ 1. There is a quasi-easement

□ 2. The right was in use immediately prior to the transfer of the land

□ 3. The right must be continuous and apparent (so the use is obvious)

□ 4. The right is necessary for the reasonable enjoyment of the property

(NB this is different from necessity, meaning the land is completely unusable, this is more relaxed)

Question 19

What is the operation of s.62 LPA 1925 with regards to easements?

Answer 19

This statute essential upgrades a licence that has been granted by the owner of land to a tenant, to an easement when the land is subsequently sold or the lease is renewed.

For example, Ben rents a room from Nadine. Ben has permission to use the shed at the bottom of the garden. When Ben renewed his lease, the permission was not expressed in the documents. The licence can be granted to an easement by operation of s.62 LPA 1925.

Question 20

What are the 4 criteras for an easement to be impedly granted by operation of s.62 LPA 1925?

Answer 20

There are 4 rules that apply:

1. There must be a conveyance of land (sale or lease granted)
2. The right claimed must be capable of being an easement (as seen above)
3. There must be a diversity of occupation , meaning the two pieces of land must be in separate ownership, unlike the rule in Wheedlon which requires common ownership of the land before transfer
4. The right must be continuous and apparent (ie obvious)

Question 21

When can an easement be created by Reservation Implied Necesisity?

Answer 21

Same as Granted by Necisty, applies where is a necessity for the use of land:

1. Rights of Support
2. Rights off way (the land must be completely inacessible by another way)

Question 22

When can an implied reservation by common intention create an easement?

Answer 22

Again, like with granting by common intention

Where it is not strictly necessary for the use of the land, but which was clearly commonly intended between the parties and for some reason or another (usually over sight) it was not included

Question 23

What is a grant of an easement by necessity?

Answer 23

This allows an easement to be acquired by long use of the easement, either 20 years or 40 years.

For 40 years without interuption, the easement is deemed absolute even if based on an express agreement

For 20 years without interuption, 3 conditions must be met:

1. The user must be as of right
   (ie no force, done open and honestly, and without permission)
2. Must be freehold land
3. The use must be continuous