3. Easements Flashcards
DEF: easement
Easement: a right attached to a piece of land that burdens another piece of land, can bind the land in scenario of a sale
DEF: License
Temporary permissions which can be withdrawn at any time, does not bind the land if it is sold, requires permission
First test for ascertaining whether an easement exists:
Is the right capable of being an easement? (Re ellenborough Park)
Re Ellenborough Park Criteria
- There must be a dominant and a servient tenement, (you must have two parcels of land, one of which has the benefit of the easement and the other of which has the burden of it
- An easement must ‘accommodate’ the dominant tenement
- the dominant and servient tenements must not be owned and occupied by the same person
- A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant
Easement must ‘accommodate’ the dominant tenement:
- Benefits dominant land at the date of the grant (not just the owner)
- Right connected with the use of the land
- Two pieces of land must be sufficiently close
Requirements for right to be capable of being granted by deed:
- Must be a capable grantor and grantee
- Three questions in Ellenborough Park
i. Rights cannot be expressed in language too wide or vague
ii. Rights cannot amount to joint occupation or substantially deprive owners of proprietorship / legal possession
iii. Rights must not involve expenditure by servient owner - Courts must have recognised this right in the past (as an easement)
Does the right to a view constitute an easement capable of being granted by deed?
No, courts will not recognise it
How are deeds created expressly?
If created in a deed / conveyance
How are implied easements created?
No deed, but a sale of part
How are easements by prescription created?
No deed, created by long use
DEF: Grant of an easement
Person selling land is granting an easement to the buyer
DEF: Reservation of an easement
Person selling the land is reserving (holding back) easements for themselves out of the land being sold
Sale of Part: which easements can the seller impliedly reserve?
- easements of strict necessity
- easements implied due to the common intention of the buyer and seller at the time of sale
Sale of part: which easements are impliedly granted by the seller?
- easements of strict necessity
- easements implied due to the common intention of the buyer and seller at the time of sale
- easements under the rule in Wheeldon v Burrows
- Easements created under s62 LPA 1925
Requirements for easements of strict necessity:
- landlocked parcel of land
- without this, land could not be used at all
(claim defeated if an alternate means of access, even if dangerous) - only if land is being used for same purpose as it was when necessity arose
Easements by common intention:
if the parties intend that the land is to be used in a particular way; then any easements that are required to enable it to be used in that way will be implied into the sale of part deed
- applies even if parties did not know something would be necessary when transfer occurred
- ie. Drains
The rule in Wheeldon v Burrows: reservation or grant of easement?
Can only apply to grants of easement
Wheeldon v Burrows: explain
Where a sale of part occurs and a buyer wants to acquire an implied easement over the retained land of the seller, where no express provision has been made, the buyer can do so if the right was:
1. continuous and apparent
2. necessary for reasonable enjoyment of the land and
3. being used as a ‘quasi-easement’ by seller for the benefit of the land being sold AT THE TIME OF THE SALE OF PART
When would Wheeldon v Burrows fail?
- if a seller (in a sale of part) forgets to expressly reserve rights over the land sold, they cannot invoke this rule because they are NOT THE BUYER
Easements under s62 LPA 1925
- imply words into a conveyance, enabling existing rights of a permanent nature (easements) to be passed automatically in conveyance of land without having to state so expressly
- may mean that person with a license over the land can transform this into an easement using a conveyance
Three requirements for a new easement to be created under s 62 LPA 1925
- Must be a conveyance (or ‘instrument’ - written document with the effect of creating or transferring a legal estate: mortgage or lease) BUT NOT CONTRACTS FOR SALE
- Prior to the conveyance of part, the ‘dominant land’ must have enjoyed the benefit of a license or permission capable of being an easement
- There was diversity of occupation at the time of the conveyance of part (not required if right is continuous and apparent eg. light)
- The right is capable of being an easement or profit (claimant need not demonstrate that the right is necessary for the reasonable use of the land
Does this license need to have been in use during conveyance to invoke s 62 LPA 1925.
No, as long as it was in use shortly before.
Does an easement by prescription require a sale of part?
No
If dominant land has been sold since the creation of the easement, what happens?
If dominant tenement is sold after the creation of the easement, the benefit of the easement will pass automatically to the new owner by virtue of s.62 LPA 1925.
When are easements capable of being legal?
if they are granted for the equivalent of
- a freehold (forever)
- a leasehold (fixed ascertainable duration)
When would an easement take effect in equity?
If it was for an uncertain creation
- would need to comply with contract requirements in s 2 LPMPA 1989 (doctrine in Walsh v Lonsdale)
Formalities required for the creation of a valid legal easement:
Generally, deed is required (complying with s1 LPMPA 1989)
- but implied legal easements do not need a deed
DEF: Servient Tenement
The land burdened by the easement (easement is exercised OVER this land)
DEF: dominant tenement
The land that enjoys the right of the easement (benefitted land)
What happens if there is an attempted easement creation with no ascertainable dominant tenement?
It will be a licence only.
- Alternatively, a profit can exist with only a servient tenement
What should be considered when ascertaining whether the easement accomodates the dominant tenement?
- proximity of servient and dominant tenement
- whether the right improves the marketability of the land
- whether ANY owner of the land would see it as a benefit (if just the current owner, may be personal)
Requirements for a right to light to be valid
- needs to be sufficiently definite and light must be enjoyed through a defined aperture (such as a window)
- person claiming right must demonstrate that light reaching windows is sufficient according to usual notions of mankind for comfortable enjoyment of the building (bearing in mind type of building)
Exception to rule that easement must not involve expenditure by servient owner
In rural areas where it is of great importance to maintain stock proof fences (ie. capable of restraining animals), may require owner of adjoining land to help keep fence in repair
Is an easement of parking a valid easement?
Potentially, only if the land is so large that this parking does not deprive owner of the reasonable use of their land
Negative easements recognised by law
For light, air and support
Three types of prescription which create easements
- At common law
- the doctrine of lost modern grant
- The Prescription Act 1832
First two necessary requirements for easement by prescription
Necessary to show right has been exercised by or on behalf of a fee simple owner against a fee simple owner:
1. continuously
2. as of right
DEF: Exercised continuously
User can be by a number of freehold owners in succession and may be intermittent in nature
DEF: as of right
The rights must be exercised without force, secrecy or permission
i. Force: including removal of obstructions or ignoring protests of servient owner (verbal, in writing or signage)
ii. Secrecy: not in secret so person could reasonably discover it
iii. Without permission: in writing or oral, evidence of payment to servient landowner indicates that user is with permission
Prescription at Common Law
Presumed if it has been enjoyed since time immemorial (1189)
- proof of this when user has used for 20 years or more but can be rebutted by showing in some time since 1189:
i. right not exercised
ii. right could not have been exercised
iii. dominant and servient tenement were vested in same owner
Prescription under lost modern grant
Presumption arises if easement has been enjoyed CONTINUOUSLY for 20 years or more (presumption that there has been a grant since 1189 but it has been lost) - legal fiction
- ie. used when dom+serv. tenements have been in common ownership since 1189
Prescription under the prescription act 1832
- dom owner can show user as of right for 20 years (30 years for profits) then they can obtain prescriptive easement
- uninterrupted enjoyment for atleast 20 years immediately before the action
- short interruptions fine but not for a year or more (if for a year or more, stops time running and 20 year period would restart)
Easement under s 62: When does the ‘diversity of occupation’ criteria not apply?
There need not be diversity of occupation of the two parts of land at the time of the grant IF:
- the easement is for light or
- the rights were continuous or apparent
Who cannot create / allege a prescriptive right?
An individual who is NOT a freehold owner
