Chapter 11- Easements Flashcards
What is an easement
Right over someone else land (right to drainage etc)
For an easement to exist what most both party’s have
Estates in the land
What is the person who benefits from the easement known as
Dominant owner
What is the person whos land suffers from the easement known as
Servient owner
Is an easement a public or a private right?
Private
What does s62 LPA state
Beneficial easements pass with the land and unless stated otherwise owners can enforce the easement
Which case law established how to identify an easement
Re ellenborough Park 1956
What are the 4 characteristics of an easement
1) both dominant and serviant owners
2) right must be a benefit to the dominant owners land
3) different people must own and occupy the dominant and servient land
4) Right must be able to form part of a written document.
How must an easement meet requirements to form a written document (3 examples)
Must be similar to
Rights of way
Rights of drainage
Rights to run cables or pipes under or over land
What is the contrary case to Hill v Tupper for mooring as an easement
P&S Platt Ltd v Crouch
What did moody v Steggles evidence
Right to put a pub sign on someone’s land as it benefited the land itself not the owner
Recently villas v diamonds resorts ltd 2018
Sports activity easements - can only be considered so if they accommodate the dominant tenement
Additional requirement to determine an easement
No positive requirement for the servient owner to spend money (unless fences)
Easements must be sufficiently definite. (Can’t protect right to light or view unless by covenant)
Can a dominant owner exclude the servient owner from the land
No, as that would not make it an easement
Example of easement case with storage
Wright v macadam
Case example where exclusive possession was determined thus could not be an easement
Batchelor v marlow (right to park)
Subsections for a legal easement
They are in term of a lease hold or free hold property
In the form of a deed if created by express grant or reservation
What s of the act covers legal easement
s1(2) LPA 1925
Do buyers require notice of easement to be bound to rights?
No, legal easements bind buyers regardless of notice
What is an equitable easement
One that is not on lease/freehold land one that is created by deed Or on land with short lease
Two examples of equitable easements
- easement got life
- easement where formalities failed (not created by deed)
How is easement protected on unregistered land
Registered at the land charges registry class D after 26/01/1926
Before subject to doctrine of notice
Easement on registered land
Protected by entry on land register
Difference between easement and licence
Easement is interest in land
Licence is permission to enter land
How can easement be created
Through reservation or by grant
What is the difference between reservation and a grant
Grant is when one person agrees to another they have rights over land which they retain
Reservation when a person reserved right over land which they sell
3 ways of granting or creating legal easement
Express grant
Implied grant
Presumed grant or prescription.
What is an express grant
One party agrees to another they can have easement
What is an implied grant
- Claimant must prove existence of easement (even though no deed or in writing)
- easement will be implied is it is an absolute necessity.
- common intention (parties clearly intended there to be an easement)
- wheeldon v burrows
Implied grant case example of necessity
Nickerson v barraclough - access restricted so need right if way
Implied grant case example of intention
Liverpool city council v Irwin
What is the 5 facts of wheeldon v burrows
- unity of ownership (one person originally owned the land the split it)
- exercise of quasi-easement (person cannot have an easement over own land).
- easement to be continuous and apparent (must be obvious right of way over track)
- easement must render use of land more convenient
- quasi-easement will become an easement
What does s62 LPA cover?
New easements - tenants acquire easements over landlords land
What two requirements must be met for a new easement to arise under S62?
Permission given to occupier to use easement
Must be a conveyance which is the transfer of legal title to occupier
Successful case of s62 LPA (diversity of occupation)
wright v Macadam
Tenant secured rights to storage in a garden shed
Requirements of easement under wood v Warrington with no diversity of ownership
- the right is continuous and apparent (obvious right of way)
- use must benefit the land
What is presumed grant or prescription
If a person can prove they’ve effectively had an easement for a period of 20 years or more, then they are entitled to that easement
What criteria must be met for a prescription to occur
1) must be a continuous user
2) used for 20 years or more
3) must be a fee simple (one freehold against one freehold)
4) easement must have been exercised without force (removed fence time create path) /secrecy/ permission
Case example where easement wasn’t awarded by prescription
Winter burn v Bennett
Removed ‘private parking’ sign
3 methods of prescription.
- won’t be awarded if def can prove that any time since 1189 an easement didn’t exist
- if used more than 20 years court will presume deeds to the easement were lost
- under prescription act 1832 if 40 years of use then cannot be made void
What does the Doctrine of Lose Modern Grant allow
An easement to be claimed for 20 year period
Difference between prescription Act 1832 and Doctrine of Lost Modern Grant
PA 1832 - 20 year user easement must have run immediately preceding the action
Doctrine of Lost Modern Grant - can be 20 year any period
What is reservation of easement
Land owner sells part of land but retains right to use the easement
What is profits à Prendre
Right to enter the land of another person and take part of produce of soil
How can easements be terminated
By statute
By release (abandoned rights)
Unity of ownership / possessions (someone buys both properties!)
How will an implied legal easement by grant or reservation be protected?
Not in the register, will show as an interest which override registered dispositions
