Easement

Question 1

Easement

Answer 1

Right to do something on someone else’s land

Question 2

Profit é prendre

Answer 2

Right to take something from someone else’s land

Question 3

Re Ellenborough Park

Answer 3

1) Must be a dominant and servient tenement
2) Easement must benefit dominant tenement - Cannot be personal (Hill v Tupper boats)
3) Must be in separate ownership
4) Must be capable of being a subject of a grant -
A) Capable grantor (legal estate) Legal Capacity
B) Right must be definite, Browne v Flower (Privacy?)
C ) Must be judicially recognised or recognised easement (not exhaustive list)

Question 4

Dominant tenement needed?

Answer 4

Some scholars say that without it that easements would be used more frequently but Law Commission said no

Question 5

Benefit to who?

Answer 5

It must benefit the land not the land owner. ‘Reasonably necessary for the better enjoyment of the land’ ‘Land must be reasonably close to each other’ Bailey v Stephens

Question 6

Registered land easement

Answer 6

Express legal easement must be completed by registration

Question 7

Extinguishment of Easement

Answer 7

1) Abandonment - Benn v Harding
2) Implied Abandonment - Pratical impossible
3) Statute - Commons Registration Act
4) Unity of ownership/possession
5) Change of use

Question 8

Creation of Legal Easement

Answer 8

1) Statute
2) Express grant or reservation
3) Implied grant or reservation - Grant A)Necessity unusable otherwise, B) Common Intention C) Implied from circumstances of grant
Reservation - Necessity, common intention
4) Common law prescription/time immemorial (1189 or living memory) the lost grant fiction 20 years, Prescription Act 1832

Question 9

Transfer of Easements

Answer 9

Legal easement in Registered land - transfer of the benefit follows on in consequence of there being an entry in the property register. Easements acquired by prescription may get entered into the register where the registrar can be persuaded that they have come into being.
Legal easement in unregistered land - A purchaser will take subject to any legal easement precisely because it is a legal easement.
Equitable easement in registered land - To bind the purchaser, the easement must be registered in the charges register for the servient tenement.
Equitable easements in unregistered land - To bind the purchaser, the easement must be registered as a D.(iii) land charge.

Question 10

Unregistered land legal easement

Answer 10

is a legal interest and is binding in rem (on the principle that the deed giving rise to it is with the deeds). An equitable easement pre-1926 is subject to the doctrine of notice. From 1926 an equitable easement would be a Class D.(iii) land charge and thus subject to registration (taking us into LCA 1972 s.4(6) and the ‘money or money’s worth’ test, as in it will be void against a purchaser for money or money’s worth (as opposed to a purchaser for value

Question 11

Registered land easements

Answer 11

In registered land an express legal easement must be completed by registration. In consequence of LRA 2002 s.27(2)(d) an express legal easement cannot be an over-riding interest, BUT
In registered land an implied legal easement would probably satisfy LRA 2002 Sched.1 para. 3 (over-riding on first registration) – cf Schedule 3 in re subsequent registrations.
In registered land in consequence of LRA 2002 equitable easements are not over-riding. To be effective they must be registered as minor interests or as a burden on the register. If not, they are not binding.
In registered land a purchaser may take free of an equitable easement if it has not been registered.