Easement and profits

Question 1

What is the servient tenement and dominant tenement?

Answer 1

Servient tenement: the landlord which the right is enjoyed and which takes the burden
Dominant tenement: the land benefitting

Question 2

The essential chracterisctic of easement?

Answer 2

1- there must be both a dominant and servient tenement
2- must benefit to the dominant\
3-dominant and servient tenement must be in separate ownership
4-the right must be of a type recognised as capable of being an easement and it must be described sufficiently to identify it

Question 3

Profit a pendre

Answer 3

the right to take something from land belonging to another, minerals, fish, timber

Question 4

legal requirements to create a legal easement or profit?

Answer 4

1- must be created by deed
2- must be forever or a fixed period (not giving for life)
3- when no deed used?
-the grant is ineffective, however if the grant is:
a)in writing that is signed by both parties and contains all agreed terms. (the law will recognize that a legal easement has been created by long use)

Question 5

creation of easement and profit?

Answer 5

1- express grant: specified in deed or grant
2- grant by statute: esement and profits should pass even if they are mentioning the transfer document.
section 62- : subject to the following limitations:
a) the right in question must be capable of being an easement
b)the grant must be within the competence of the grantor
c)the use must not be excessively personal, excessively precarious, merely temporary, mere memory
d) applies only insofar as a contrary intention is not expressed in the conveyance.
3- Implied grant or reservation
a)easement by necessity
b)intended easmeent
c)ancillary easement
d) easement implied by existing use
-are continuous and apparent
-are necessary to the reasonable enjoymentof the land acquired
-had been, and were at the date of the conveyance, used by the seller for the benefit of the land now being sold.
(Wheeldon v Burrows)

Question 6

will implied reservation of easement be recognised?

Answer 6

generally, no easement will be implied in favour of the person granting this right. 2 exceptions, easement of necessity and intended easement.

Question 7

easement created by presumed grant or prescription? long use

Answer 7

-used the benefit unchallanged for over 20 years,
-used the benefit as of right, no payment or don’t ask for permission
methods:
1- prescription at common law
2- prescription by lost modern grant
3-prescription by the prescription act 1832 (20-40 years)
*easements are legal interests and following the first registration of the burdened land , most legal easements are overriding interest and so are capable of binding successive registered proprietors of the burdened land.

Question 8

protection of easement if the title is registered

Answer 8

register to HMLR
The benefit of the easement will appear as a notice on the property register of the dominant tenement
the burden of the easement will appear as a charges register of the servient tenement.

1- easement and profits that are protected by registration will bind the buyer
2- if an easement or profit is registered but was created before LRA 2002( came into enforce 13th October 2003) and was an overriding interest at that time , its overriding status will be protected.
3- if those are created after 13 the 2003, the amount of protection depends on how it is created
4- if it was created by an express grant or reservation, it must be registered otherwise it will not take effect as a legal interest
5- if it was created by other method:
a)if it is merely equitable, it will not override
b)if it is legal, it will override only if certain conditions are met

Question 9

protection of easement if the title is unregistered

Answer 9

legal easement or profit is enforceable against any buyer as legal rights.
equitable easements must be registered as D(iii) land charge to bind the buyer as registration constitutes notice.