Creation of Express and Implied Grant of Easements Flashcards
An easement or profit is a legal interest of land provided that:
Must be correct duration (s1(2)(a) LPA 1925.
Correct way
- Deed (52 LPA 1925
- Statute
- Prescription (20 years without objection by the landowner.
Express reservation of easements
When a seller sells part of the land and creates an easement on a part that he retains.
A clause relating to a express reservation of an easement is too vague.
Johnstone v Holloway, find this in favour of the dominant owner.
Equitable easement
Easement created by deed for wrong duration e.g for life.
Easement created by deed but registration not yet competed
No deed but specifically enforceable agreement in writing.
Proprietary estoppel.
Distinction between grant and reservation.
Granted
o When it is created by a landowner in favour of another person.
Reserved
o When a person selling land creates an easement over the land he is selling for himself.
o Only occurs where there is sale of part of someone’s land.
Express grant or reservation
Unless there are words otherwise, the easement will be for the largest interest that the grantor can grant.
ALWAYS CONSIDER AS AN OPTION EVEN IF IT IS AMBIGUOUS.
Can be very broad. Jelbert v Davis- “at all times, for all purposes”.
Implied grant
Courts have decided that an easement will be granted presumed intentions of the parties and non-derogation from grant.
Occurs where there is division of land, formerly in common ownership. Implication of an easement in favour of a purchaser of part of the land or a tenant of part of the land e.g conveyance of fee simple (which would then be legal due to deed).
Can also have an easement implied through a contract (would be equitable only).
Neccisty
Nickerson v Barracloug-1CA
• Only arises where without it, the purchaser of land could not get to his land-must be landlocked
Sweet v Sommer
• Likely to only apply to rural locations that are
remote where vehicular access is necessary.
Based on intention and can be excluded by the parties
(Adealon-CA). Not based on public policy.
Look at date of transfer to decide whether or not the land is landlocked. Needs to be a right to reach land-even if it is not a good right of access.
Issues arise where land is surrounded by seller’s land but
also a 3rd party’s land. Adealon- possibility of access over 3rd party land is irrelevant
Intention
implied where land is sold or leased for a particular intended purpose and the purpose cannot be carried out without the easement.
Deals with intention of parties and can be excluded.
Wong v Beaumont (CA)
Sweet v Sommer
Nickerson v Barraclough (CA)
Implied into both deeds and contracts.
Wong v Beaumont (CA)
Dealt with a lease for cellars to be used as a restaurant.
Business could only be lawfully carried out and comply with the lease with installation of ventilation system which would require duct on landlord’s property.
Held that an easement to that effect had been impliedly granted.
Sweet v Sommer
Plot of land sold for building purposes.
Judge prepared to imply grant of a right of way for vehicles while it was being built.
Prepared to imply grant of a right of way for all
future vehicles of owners once it had been built. Land would not be usable without vehicular access-house at a large distance from shops or facilities.
Nickerson v Barraclough (CA)
Court might be prepared to frustrate intention of the parties if it was contrary to public policy.
Section 62 LPA 1925
o Word Saver-Implies certain words into a conveyance of land. There to ensure that all connected rights pass with the land.
o Also have the ability to create new easements out of what was a license (Wright v Macadam-converted license to use the shed into an easement to use the shed) and out of quasi-easements.
o Reverses burden of proof-Easements pass with the land unless there is intention to show otherwise.
o Must be a conveyance of land (Borman v Griffith)Qconveyance of fee simple and grant/assignment of a lease.
Cannot be used to imply an easement into a contract-contractual lease under Walsh v
Lonsdale. Only writes words into a conveyance-legal lease.
Requirements of 62 LPA 1925
Actual use of a right for the benefit of the dominant tenement (Goldberg v Edwards (CA))
o Relevant time is the date of the execution
of the lease.
o Courts will look at reasonable period of time
before the conveyance.
Right must be of a nature that it can be an easement. (Green v Ashco)
o Right could not be an easement as
permission had to be sought everytime the person wanted to use the access.
Ways an implied grant of easement is performed
1) Necessity;
2) Common Intention;
3) Wheeldon v Burrows; and
4) s62 LPA 1925.
Rule in Wheeldon v Burrows (CA)
o Looks at what was previously done on the land.
o Quasi-Easement-Right that could be an easement if the two properties were in different ownership or occupation. These can be converted into easements on the division of land.
o Only applies for implied grant and not reservation.
Implied Reservation
Much more limited-if somebody selling lands wants to reserve rights over the land he is selling then he must do it expressly.
Situations where easement can be impliedly reserved:Easement of Necessity (Wheeldon); Easement of Common Intention; and Reciprocal and Mutual easements.
If there are simultaneous conveyances of the two pieces of land, the rules of grant apply to both.
Law Commission Proposals of implied reservation
Views implied creation as useful-allows creation of easements that would have been created except for oversight or ignorance. Ensures that land can be used and is marketable.
Feels that there is an unsatisfactory number of methods of implied grant
Proposals:
o No distinction between grant and reservation.
o Should be one statutory method of implied creation-implied
when it is necessary for the reasonable use of the land at the time
of the transaction unless the parties have expressly excluded it.
o S.62 should no longer operate so as to create new easements. Can be a trap for the unwary, converting an act of kindness into an easement.
Remedies for interference
Dominant owner can seek either damages or an injunction. Must be substantial interference with his enjoyment of the easement.
Test: Interference with the reasonable use of a right of way (B & Q v Liverpool). If there is a gate1it depends on issues such as whether the dominant owner has a key and whether or not it is locked.
Celsteel v Alton (CA)
Saint v Jenner (CA)
Celsteel v Alton (CA)
o Dealt with issue of narrowing the route of a right of way over a driveway past a petrol station to garages.
o Petrol station proposed a car wash which narrowed driveway by a half.
o Would prevent one of the tenants from reversing into the garage.
o Held to be substantial interference as reversing into garage was reasonable use of right of way. Prevented reasonable use.
Saint v Jenner (CA)
o Dealt with installation of speed ramps over right of way along a lane.
o Held not to be substantial interference and servient owners entitled to safe use of the land.
o However, since then potholes developed.
o The combination of the speed ramps and the potholes
constituted substantial interference.
Ancillary Rights
Dominant owner will acquire any ancillary rights necessary to its effective exercise and enjoyment.
Most common ancillary right is to repair the right of way.
Moncrieff v Jamieson
Moncrieff v Jamieson
Only way to house was down a stairway-bounded by sea and cliff. Express grant of right of way of vehicles and pedestrians. Physically impossible to park on dominant land. If there was no way to park on servient land, the owners would have had to park on the road far away which was steep and exposed.
o Held on the facts that the right of way had ancillary to it a right to park.
Extent of an easement
Courts will look at the extent of right of way when originally created in light of surrounding circumstances such as purpose and physical characteristics.
St Edmundsbury v Clark
Implied Easement-look at circumstances giving rise to the implication or whether there has been a radical change in the character of the use of the dominant tenement.
McAdams v Robinson (CA)
Jelbert v Davis
