7. Easements

Question 1

What are the four essential characteristics of an easement?

Answer 1

1. There must be a dominant and servient tenement
2. Easement must benefit the dominant land, not just the owner/occupier personally.
3. Dominant and servient land must be in separate ownership
4. Right claimed must be capable of forming a subject matter of a grant + defined clearly.
   - granted by someone w/ power to (freeholder/leaseholder).
   - be an recognised form of easement.

Question 2

What is the question to ask when considering whether something is capable of being an easement?

Answer 2

Does it make the dominant tenement a more attractive or convenient landholding

• must be something dominant owner takes POSITIVE steps to exercise.
• cannot impose a positive burden unto servient owner.
• only a limited/closed list of negative easements = valid.
• must not overburden the servient land

Question 3

When will a right be considered too extensive to form a valid easement, and how is this assessed?

Answer 3

Where claimed easement is akin possessory right

Ask: whether easement ‘substantially interferes’ w/ enjoyment of the servient land?
* need to leave sufficient room for other uses.
* -servient owner should retain possession + control of land where right is claimed - relative to entire plot of land, but simply claimed parcel (Moncrieff)

Question 4

What are the few forms of negative easements that can be validly granted?

Answer 4

• right to (ie. structural) support - not have neighbour tear down existing structure.
• right to light

note that all of these need to be very clearly defined.
- Cannot simply be a general right ie. to light over your garden, need a defined aperture.

Question 5

Why are negative easements generally not valid?

Answer 5

Restrictive covenants are meant to provide for these sorts of rights.

Question 6

What type of easement will the law recognise by long use (prescription)?

Answer 6

Legal easement
- exercised without protest for a minimum term of 20 years (same idea as in nuisance)

Question 7

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

Answer 7

1. Necessity
2. Common intention
3. Wheeldon v Burrows Rule
4. S.62 LPA 1925

Question 8

What are the three ways an easement can be implied by reservation?

Answer 8

1. Necessity
2. Common intention
3. Prescription - long use.

Question 9

When does implied grant or reservation arise?

Answer 9

When the parties have not expressly created necessary easements as part of the conveyance

Question 10

When will an easement be implied by necessity?

Answer 10

Where a parcel of land is landlocked, a right of way over servient land will be implied in order to access the dominant parcel.
- very stringent test.
- not be implied if there is an alternative ie. access point, even if much more inconvenient.
- common for rights of away/support

Question 11

When will an easement be implied by common intention?

Answer 11

1) Dominant land must be sold or leased for a specific purpose;
2) Purpose must be known to both parties; and
3) Easement claimed must be essential to achieve the common purpose.

Question 12

What are the four requirements for an easement to be implied under the Wheeldon v Burrows rule?

Answer 12

Easement must:

1. Quasi easement
   - Would have been an easement were it not for the land being in full ownership of one person at the time.
2. Used immediately before transfer.
3. Use was continuous and apparent
4. Necessary for reasonable enjoyment of the land acquired (not as stringent as necessity).

Question 13

When will an easement be implied via the Wheeldon v Burrows rule?

Answer 13

where the land was previously under the same ownership, and landowner sells/transfers a portion of it.
- transfer is deemed to contained all rights OG owner enjoyed.

Implied legal easement

Question 14

When will an easement be implied via s.62 of the LPA 1925?

Answer 14

Only works where there is a conveyance.

Situation (A)
Permission is upgraded:
1) Land has been divided by a lease or transfer deed (first conveyance)
2) An informal permission arises from that first conveyance
3) There is a new lease or transfer deed (second conveyance - upgrades the permission form a licence to legal easement).

Situation (B)
Land is divided for the first time, acquire all rights that were exercised by the common owner provided these are “continuous and apparent.”
* similar to wheeldon v burrows - s.62 will apply where conveyance takes places, but otherwise that’s how ‘wheeldon’ retains its relevance.

Implied legal easement

Question 15

What are four conditions must be satisfied for an easement to be implied via s.62 of the LPA 1925?

Answer 15

• must be a land conveyance
• capable of being an easement
• no express exclusion of s.62 in transfer/sale.

Question 16

Why is the burden of proof higher where an easement is implied by reservation?

Answer 16

Based on the idea that once you grant something, you should not be capable of retaining rights that would make grant useful.

Question 17

What are the two requirements for an easement to arise by prescription?

Answer 17

1. Exercised right unchallenged for 20 years or more
2. Non-secretive and continuous use
3. Not obtained permission
4. Both freehold owners of land (cannot claim a prescriptive right over landlord).

Question 18

What is the status of an easement arising by common law prescription?

Answer 18

It is a legal interest

Question 19

If title is registered, where will (1) the benefit and (2) the burden of easement appear?

Answer 19

Benefit
- notice on property register of dominant land

Burden:
- notice on charges register of servient land

Question 20

What is the consequence of not registering a right which arises by express grant or reservation?

Answer 20

It will not take effect as a legal interest, and will not override an equitable interest

Question 21

What is required for an equitable easement to bind a buyer in the unregistered system?

Answer 21

Registration as a D(iii) equitable easement land charge

Question 22

Are recreational easements valid?

Answer 22

Regency Villas shows increased relaxation of general rule against recreation easements.

Facts:
Easement for benefit of time-share villas to use recreational facilities on servient land was held to be valid.
- BUT - only in so far as servient owner did not have to pay for facilities’ upkeep.
- reasoning by S.C = exercise is essential and desirable in modern times.

Question 23

What are the two conditions for an easement to be expressly granted/reserved?

Answer 23

• must be created
• clear words must be used.

Question 24

Is diversity of occupation of occupation required for section 62 to operate?

Answer 24

No, provided exercise of the relevant rights is continuous and apparent.

Question 25

What is the operational difference between implying an easement under the rule in Wheeldon v Burrown and section 62?

Answer 25

Wheeldon v Burrows = easement will be implied only if there is no deed to imply the easement into.

S.62 LPA = only implied into a covenyance (deed exists).

Question 26

What status is given to prescriptive easements?

Answer 26

Take effect as legal easement even though it is not created by an express grant and has not been registered.

Question 27

What is a key point to look out for whether determining whether an easement is validly reserved by the original land’s owner?

Answer 27

must consider the number of opportunities they had to reserve right for themselves.
- ie. if they entered into two leases with same tenant, and failed to reserve it, then unlikely that a reservation of an easement by common intention will be deduced.

Question 28

What is meant by the requirement that an easement must be exercisable as of right?

Answer 28

Not an easement where the right requires permission from the servient owner each time it is exercised.

Question 29

What formalities must be complied with the create a legal easement?

Answer 29

• created by deed
• registered (unless land is unregistered)
• for a certain term

Question 30

When might an equitable easement arise?

Answer 30

• A purported legal easement for an uncertain term (inherently equitable), provided it is created in writing and signed by grantor (s.53(1)(a), LPA)
• Created in complies with s.2 LP(MA)P (estate contract) (expressly equitable)

Question 31

Where an easement is for an uncertain term, what will it be categorized as?

Answer 31

inherently equitable easement
* only exist if it is created in writing and signed by grantor.

Question 32

How is a legal easement in unregistered land protected?

Answer 32

via principle that ‘legal interests bind the world’

cf. equitable easement (ie. for an uncertain term or failed deed) - need to be registered on Land Charges register against the name of its grantor as Class D(iii) land charge

Question 33

What are the three elements defeating the finding of an easement?

Answer 33

1) Permission needed
2) Exercising right would amount to exclusive possession
3) Require payment

Question 34

How will implied easements be enforceable against third-parties?

Answer 34

1) Implied legal easements (when implied in a legal documet)
* Overriding interest
* right exercised in the previous 12 months.
* right is obvious on reasonable inspection of the land.

2) Implied equitable easement (when implied in an equitable document)
* notice on the charges register and will not bind a purchaser for value, but still bind a donee.

Question 35

What are profits a prendre?

Answer 35

right to take something from the land of another
i.e. fish, wood, raise pigs

Question 36

are

What formalities must be complied with to create a valid profit?

Answer 36

• Created by deed
• Last forever or for a fixed period