7. Easements and Profits

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 must be capable of being an easement and described sufficiently to identify it

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

Question 3

What are the two requirements for a legal easement or legal profit?

Answer 3

Must be:
1. For equivalent of an absolute interest
2. Created by deed

Question 4

What does it means that a legal easement or legal profit must be for equivalent of an absolute interest?

Answer 4

It must last either for a fixed period, or forever, but not “for life”

Question 5

What two conditions must be met for equity to recognise a legal easement or profit not created by deed?

Answer 5

1. In writing incorporating all terms expressly agreed
2. Signed by both parties

Same as exception to non-short lease not by deed.

Question 6

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

Answer 6

Legal easement

Question 7

What are the four ways an easement can be created?

Answer 7

1. Express grant or reservation
2. Implied grant or reservation
3. Prescription
4. Statute

Question 8

Under section 62 of the Law of Property Act 1925, what type of easements and profits will pass under statute even if not specifically mentioned in the transfer document (and why), and does this apply to grant and reservation (and why)?

Answer 8

Easements and profits appurtenant because they run with the land and cannot be transferred on their own.

Just grant, because if the seller wanted to reserve them when selling a parcel of land, they easily could have (same reason why implied easement generally can’t help seller other than two exceptions).

Question 9

What are the two conditions for section 62 to apply and allow easements and profits appurtenant to run with the land?

Answer 9

1. Grant is within competence of grantor
2. A contrary intention is not expressed

Question 10

When does implied grant or reservation arise?

Answer 10

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

Question 11

What are the four types of easements which can arise impliedly?

Answer 11

1. Easements by necessity ##
2. Intended (but not executed) easements ##
3. Ancillary easements
4. Easements implied by existing use

Question 12

When will an easement be implied by necessity?

Answer 12

Where a parcel of land is landlocked, a right of way will over servient land will be implied in order to access the dominant parcel

Question 13

From what will an ancillary easement arise?

Answer 13

From the realities of the circumstances, e.g. grant of right to take water from a spring implies an ancillary right of way to that spring

Question 14

What are the three requirements for an easement by existing use to be implied on sale/transfer?

Answer 14

Easement must:

1. Be continuous and apparent
2. Be necessary to the reasonable enjoyment of the land acquired
3. Have been used by the seller for the benefit of the land at the time of conveyance

Question 15

Will an easement generally be implied in favour of the party granting the rights, and why?

Answer 15

No, because if they wanted to reserve something in their favour, they had all the knowledge to do this

Question 16

What are the two exceptions to the rule that easements generally will not be implied in the favour of the party granting the rights?

Answer 16

1. Easement by necessity
2. Intended easement

Question 17

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

Answer 17

Party has used the benefit:

1. Unchallenged for 20 years, and
2. As of right, i.e. without permission or making payment

Question 18

What are the three avenues under which a right can be acquired by prescription?

Not overly relevant but the terms could be used in an answer choice.

Answer 18

1. Common law (20 years considered time immemorial)
2. Lost modern grant (after 20 years, court pretends you had a grant and lost it)
3. Prescription Act 1832

Question 19

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

Answer 19

It is a legal interest

Question 20

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

Answer 20

Benefit: Notice on property register of dominant land
Burden: Notice on charges register of servient land

Question 21

When will easements and profits in the registered system bind a buyer?

Answer 21

When they are registered

Question 22

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

Answer 22

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

Question 23

What is required for a legal easement or profit to bind a buyer in the unregistered system, and why?

Answer 23

Nothing, because legal interests over unregistered property are automatically binding on the world

Question 24

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

Answer 24

Registration as a D(iii) equitable easement land charge