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Temporary permissions which can be withdrawn at any time, does not bind the land if it is sold, requires permission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