7 - Easements Flashcards
Define an easement?
A private property right which one person holds over someone else’s land.
What is provided by s62 LPA 1925 in relation to beneficial easements?
Beneficial easements pass with the land and can be enforced by the buyer, unless stated otherwise in the conveyance.
What are the 4 characteristics which must be satisfied for the creation of an easement and which case provides this?
1 - must be a dominant and servient tenement
2 - right must benefit dominant tenement (the land rather than personal benefit)
3 - diversity of ownership and/or occupation
4 - right claimed must be capable of forming the subject matter of a grant.
Case - Re Ellenborough Park
What are the four requirements a right must meet in order to be considered capable of forming the subject matter of a grant?
a - must be similar to existing easements (i.e. right of way, right of light etc.)
b - no requirement for servient owner to spend money
c - must be sufficiently definite
d - must not amount to a claim for exclusive possession
What is the general position on whether a right to park cars is considered an easement and in which case did this arise?
A right to park cars can be an easement, as decided in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
Which two ways are easements created?
By grant or by reservation
What are the three ways an easement is granted?
Express grant, implied grant, and presumed grant or prescription
What is express grant of an easement?
Where a property holder expressly agrees another should have an easement over their land. Must be created by deed and equivalent to a legal estate.
How can an easement be granted by implication?
By necessity, common intention, Wheeldon v Burrows or s62 LPA 1925 and the claimant has the burden of proof of the existence. With sufficient evidence the court will declare one exists despite not being created by deed or in writing
How is an easement implied and granted by necessity? + case law
The easement is implied if it is absolutely necessary, for example if the landlocked with no access without a right of way (Nickerson v Barraclough). Mere inconvenience is insufficient to imply an easement from necessity.
How is an easement implied and granted by common intention? + case law
The parties must clearly have intended the easement (Liverpool City Council v Irwin)
What are the 5 requirements of Wheeldon v Burrows in relation to grant of implied easements?
If someone splits their land in two, implied easements may be created in the buyer’s favour. These will be created if:
(i) there is unity of ownership & occupation
(ii) exercise of quasi-easements
(iii) continuous and apparent (right must be obvious)
(iv) necessary to reasonable enjoyment of land
(v) division of the land means quasi become implied
When is an easement granted by prescription?
If there is continuous user for 20+ years. Exercised by one freehold owner over another and exercised as of right (without force, secrecy or permission).
What are the three different methods of prescription?
1 - right enjoyed for 20+ years to grant at common law
2 - doctrine of lost modern grant
3 - Prescription Act 1832
What is reservation of easements?
Occurs if owner sells part of land but retains right to use easement on sold land. If no deed, easement can only be implied by necessity or common intention.
