Creation and Priorities of Easements

Question 1

Key difference between creation of reservations and creation of grants.

Answer 1

 There is a prima facie rule that reservations should be expressly created, for the presumption is that the grantor shall not derogate from his grant (Walby)

Question 2

When will reservations be implied?

Answer 2

The easement must be necessary for the use of the land (Lighterage - “easements of necessity”) or necessary to enable the DTO to enjoy a right expressly granted/use the land for the purpose for which it was conveyed (Pwllbach - “easements of intended use”)

Question 3

Wong

Answer 3

Since the lease specified that the DT (cellars) would be used as a restaurant, there was an easement of necessity to fix ducting to the ST for ventilation purposes, w/o which the restaurant could not function lawfully

Question 4

Two conditions for easement of intended use.

Answer 4

Stafford – the DTO must show on the BoP that

(i) There was some common intention as to some definite and particular user (i.e. the facts are not reasonably consistent with any other explanation; Webb)
(ii) The easement is necessary to give effect to it.

Question 5

4 ways to create implied grant.

Answer 5

(i) Necessity
(ii) Intended Use
(iii) Wheeldon v Burrows
(iv) S.62

Question 6

5 conditions for Wheeldon v Burrows

Answer 6

1. Continuous and Apparent.
2. Necessary for reasonable and convenient enjoyment.
3. Grantor is owner and occupier of the entirety.
4. Exercised prior and up to the time of the transfer
5. No contrary intention.

Question 7

Ward (defining continuous and apparent)

Answer 7

A feature which would be seen on inspection and which is neither transitory nor intermittent

Question 8

Millman (cf Ward)

Answer 8

While Ward suggested this requirement only applied to positive easements, the analysis in Millman indicates it will always be necessary (G&G/Garland support this, noting that Wheeldon effectively creates an easement where none had previously existed, and this must be justified by utilitarian considerations)

Question 9

Millman (necessity)

Answer 9

the fact that the lane was significantly safer to use w/ the lay-by made the easement to use the lay-by “necessary for reasonable enjoyment” of the lane

Question 10

Costagliola (time factor for Wheeldon)

Answer 10

It appears to be sufficient that the right has been exercised in the recent past and is expected to continue after the grant, for the right recognised had not been exercised for a ten-month period before sale

Question 11

Give e.g.s of a case that fell afoul of the “no contrary intention” rule in Wheeldon, and another of a case that did not.

Answer 11

 Squarey – the contract included a standard form term that would exclude a claimed right of way; the CoA held that this indicated the right was not intended to pass (despite it being a standard term)

 Millman – the presence of an existing express right of way does not preclude the implication of a wider right of way under Wheeldon

Question 12

What is the effect of S.62 of the LPA 1925?

Answer 12

Any right enjoyed with the property will blossom into an easement upon conveyance by means of an implied grant, even if it was originally not proprietary, exercised by permission only and thus precarious (e.g. Hobbs)

Question 13

Five requirements for S.62.

Answer 13

1. The right must be an easement known to the law (Wright)
2. There must be conveyance of a legal estate.
3. There must have been diversity of occupation (Kent).
4. The advantage must be enjoyed with the land conveyed (Goldberg - the focus is on the nature of the permission and whether it was capable of being annexed to the conveyance).

Question 14

Wood (S.62)

Answer 14

The focus of the requirement that the advantage must be “enjoyed with the land” is on how the advantage was actually used and whether it was apparently for the benefit of the land conveyed and a burden on the land retained

Question 15

Common Law Prescription

Answer 15

Proof of use for 20 years is sufficient, but any evidence that the right could not possibly have existed in 1189 will be fatal to the claim

Question 16

Lost Modern Grant

Answer 16

From 20 years’ use, the court would draw a fictional and irrebuttable (Dalton) presumption that a grant had been made and lost

Question 17

Oakley

Answer 17

The only way to rebut this presumption of lost modern grant is by showing that the STO is legally incapable of granting an easement

Question 18

Two requirements for prescription under PA

Answer 18

1. Continuous and Substantial Use

2. Uninterrupted Use

Question 19

Hollins

Answer 19

i. Continuous and Substantial Use – “the use must be enough to carry to the mind of a reasonable person in possession of the ST the fact that a continuous right to enjoyment is being exercised and ought to be resisted”

Question 20

S.4 of the PA provides that an interruption will be disregarded unless acquiesced in or submitted to for a period of a year. When will acquiescence be found? (3 cases)

Answer 20

o Vigorous protest when the exercise of the right is interfered with (Davies) or active negotiations (Smith) make it unlikely that an interruption will be found.

o Dance – the two year delay in bringing a claim after the exercise of the right had been interfered with, combined w/ a failure to complain up till the time of seeking legal advice, proved fatal to the claim

Question 21

A has discovered that B is attempting to acquire an easement of storage in his garage by prescription. Advise him.

Answer 21

Since B is attempting to prescribe a positive easement, A can interrupt his use by denying B entry.

Question 22

Easements of light receive special treatment under the PA 1980. Discuss.

Answer 22

S.3 provides that easements of light arise after 20 years’ right, regardless of capacity of the parties, w/o requirement that user be as of right (but the right will be defeated by written consent or agreement.

Question 23

Two universal requirements of prescription

Answer 23

1. Sunningwell – it must appear as if C is exercising a legal right nec vi, nec clam, nec precario
2. Sturges – Acquiescence by the STO lies at the heart of prescription

Question 24

Redcar (nec vi)

Answer 24

If the use continues after the owner has protested, it is treated as vi; actual physical force is NOT needed

Question 25

Smith

Answer 25

Contentious user (it is apparent that the STO actually objects and will back his objection either by physical obstruction or legal action) is vi

Question 26

Sturges (clam)

Answer 26

A man cannot generally be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no actual or constructive knowledge

Question 27

Lighterage (clam)

Answer 27

To be nec clam, the enjoyment must have been open, of such a character that an ordinary landowner, diligent in the protection of his interests, may be deemed to have had a reasonable opportunity of becoming aware of that enjoyment

Question 28

3 examples where user has been held to be clam

Answer 28

 The state of the land does not disclose the claim (Lighterage)
 The user is at such times of the day as would not be spotted by the STO (Liverpool Corporation)
 The STO is absent and thus cannot discover the user (Diment)

Question 29

Two examples where user has been held to be precario

Answer 29

o Gardner – the payment of a regular sum to the STO from C shows a continuing element of permission and destroys any argument that the user is as of right.
o Odey – if the STO explicitly gives permission this will stop time running as subsequent user will be held to be by permission

Question 30

Is toleration permission? 2 cases

Answer 30

NO (Mills); not even if the owner encourages or facilitates the user (Bresford)

Question 31

Discuss prescription where the DT is leased.

Answer 31

The tenant acquires the easement on behalf of the fee simple (Pugh)

Question 32

Discuss prescription where the DT is owned by the tenant and the ST by the landlord.

Answer 32

The landlord cannot have an easement over his own land, so no easement by prescription arises (Kilgour), but it seems C can prescribe against his landlord such that if C subsequently buys the ST, he retains the easement (Wall).

Question 33

Discuss prescription where the ST is leased.

Answer 33

Only acquiescence by the fee simple servient owner, who must have at least have the opportunity and ability to object to the use of the land, can give rise to prescription (Llewellyn)

Question 34

Coventry (positive easements_

Answer 34

For positive easements time starts running only when the DTO’s enjoyment of the right crystallises into a legal wrong against the STO for which the STO may seek redress (e.g. if it constitutes a nuisance), for an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence

Question 35

Four requirements for express or implied easements to be legal?

Answer 35

a. The servient estate needs to be legal (as the easement is carved out of it) and probably the DTO as well.
b. The easement must either last forever or have a definite end point (S.1 LPA)
c. The easement must be created by or implied into a deed of conveyance.
d. The easement must be registered on the title of the DT and entered as a Notice against the ST.

Question 36

Requirements for equitable easements?

Answer 36

1. Must be created in writing (S.53(1) LPA) unless they are created by PE or the doctrine of anticipation (in which case they must meet the requirements of S.2 LP(MP)A)
2. They need not have a definite end point

Question 37

What are the four circumstances in which legal easements bind purchasers for valuable consideration?

Answer 37

o Substantively registered
o Protected by a Notice
o Qualifying as a discoverable legal easement under Sch 3 Para 3
o An actual occupation overriding interest under Para 2 (Chaudhury – mere use of a right of way probably does not suffice, though parking/storage might)

Question 38

What are the two situations in which equitable easements will bind purchasers for valuable consideration?

Answer 38

o Protected by a Notice

o Qualifying as a Para 2 overriding interest