7. Easements and Profits Flashcards
What are the four essential characteristics of an easement?
- There must be a dominant and servient tenement
- Easement must benefit the dominant land, not just the owner/occupier personally
- Dominant and servient land must be in separate ownership
- Right must be capable of being an easement and described sufficiently to identify it
What is the question to ask when considering whether something is capable of being an easement?
Does it make the dominant tenement a more attractive or convenient landholding
What are the two requirements for the creation of a legal easement or legal profit?
Must be:
1. For fixed period or be forever
2. Created by deed
What does it mean that a legal easement or legal profit must be for equivalent of an absolute interest?
It must last either for a fixed period, or forever, but not “for life”
What two conditions must be met for equity to recognise a legal easement or profit not created by deed?
- In writing incorporating all terms expressly agreed
- Signed by both parties
Same as exception to non-short lease not by deed.
What type of easement will the law recognise by long use (prescription)?
Legal easement
What are the four ways an easement can be created?
- Express grant or reservation
- Implied grant or reservation
- Prescription
- Statute(very rare)
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)?
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).
What are the two conditions for section 62 to apply and allow easements and profits appurtenant to run with the land?
- Grant is within competence of grantor
- A contrary intention is not expressed
When does implied grant or reservation arise?
When the parties have not expressly created necessary easements as part of the conveyance
What are the four types of easements which can arise impliedly?
1. Easements by necessity ##
2. Intended (but not executed) easements ##
3. Ancillary easements
4. Easements implied by existing use
When will an easement be implied by necessity?
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
From what will an ancillary easement arise?
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
What are the three requirements for an easement by existing use to be implied on sale/transfer of a part of Land?
Easement must:
- Be continuous and apparent
- Be necessary to the reasonable enjoyment of the land acquired
- Have been used by the seller for the benefit of the land at the time of conveyance
Will an easement generally be implied in favour of the party granting the rights, and why?
No, because if they wanted to reserve something in their favour, they had all the knowledge to do this.
The reason for this is that as the seller or grantor, that party has control over the land and the conveyancing documentation and should expressly reserve the rights that may be required for the full enjoyment of the retained land.
