Easement Flashcards
What is an easement?
A right to cross or otherwise use someone else’s land for a specific purpose - only available to those who have some connection to the land.
Essential Characteristics
- There must be a dominant (land which is benefited by some third party right) and servient (land which bears the burden of some party right) tenement
- an easement must accommodate the dominant tenement
- the dominant and servient owners must be different people
- the right claimed must be capable of forming the subject matter of a grant
The easement must accommodate the dominant tenement
Right claimed must benefit the land itself and not be a personal benefit (I.e if someone was claiming a right of way but had another way of accessing and only wanted the right as it is more convenient for them).
Meaning of accommodation
The easement is not dependent upon specific characteristics or identity of the owner of the dominant tenement
The two pieces of land should be close in proximity although not necessarily adjacent.
The easement cannot purely be recreational in nature - although physical exercise is regarded as essential and desirable
If right claimed is more likely to increase saleability then more likely to demonstrate that it accommodates the land.
The right must be capable of forming the subject matter of a grant
The easement must be defined clearly and free from ambiguity (I.e right to a view and uninterrupted television signal would be too vague)
There must be someone who is capable of granting the easement and someone who the easement can be granted to (cannot be undefined body of persons I.e all of the nurses of QE)
It must be like existing forms of easements, so nothing new or novel.
No new negative easements
Examples of negative easements
- rights of support, rights of preventing an adjoining neighbour from removing existing structures
- rights of light, preventing an adjoining neighbour from building on their land which may prevent the light to the neighbouring land
It must not be too extensive (the ouster principle)
Must be a right to use the land not to possess. You may have an easement of storage or parking but dominant owner cannot store too much or completely deprive the landowner of control of the land.
It must be no positive burden on the servient owner
Generally servient owner must not be obliged to do anything or spend money as a result of the grant of easement. The only thing they must do is let the dominant owner exercise their right without interference.
Creation of easements
Expressly
Impliedly
By prescription
By statute
Implied grant or reservation of easement
- by necessity
- by common intention
- under Wheeldon v Burrows
- by operation of s62 LPA 1925
Grant by necessity
If land would be completely land locked without the easement being granted.
Grant by common intention
Easements commonly intended between the parties for that use of the land.
Wheeldon v Burrows
Where a landowner sells or leases part of their land to someone else, the transfer would impliedly contain all of the rights of enjoyment the original landowner enjoyed.
Quasi- easements
Use of the land which would have become an easement if the land in question had not been in full ownership of one person. It is impossible to grant yourself a right over your own land.
Criteria for W v B rule
- There is a quasi-easement
- The right was in use immediately prior to the transfer of the land
- The right must be continuous and apparent
- The right is necessary for the reasonable enjoyment of the property
