Easements

Question 1

What is an easement

Answer 1

Right of land owner to make use of land for benefit of their own land

Question 2

Re ellenbourgh park 4 criteria for easements

Answer 2

Must be dominant and servient land
Must accommodate dominant land
Cannot both be owned and occupied by same person
Capable of forming grant

Question 3

Can an easement or profit exist in gross

Answer 3

Profit can but easement cannot

Question 4

Meaning of ‘exist in gross’

Answer 4

Where only servient tenement is identified without any dominant land

Question 5

Criteria for being capable of forming a grant

Answer 5

Precise
Capable Grantor
No expenditure by grantee
Not too excessive - not possession

Question 6

Meaning of accommodating dominant land

Answer 6

Right is connected to normal enjoyment of the land

Question 7

Do the dominant and servient lands need to be connected

Answer 7

No but need to be close enough

Can be a parcel of land between them

Question 8

Is it necessary for an easement to benefit the land

Answer 8

Yes the easement must benefit the land not just the owner eg increase value of land

Question 9

What is the principle of diversity

Answer 9

Dominent and servient land cannot be owned and occupied by same person
You cannot have an easement over your own Land

Question 10

What are quasi easement

Answer 10

An easement but when land is owned by same person

Question 11

Is there a general right to light

Answer 11

No but can have easement if there is a defined appature to extent needed for comfortable enjoyment of building

Question 12

Can you have an easement for views

Answer 12

No

Question 13

Can you have an easement that requires expenditure or positive obligation on part of servient owner

Answer 13

No but exception is to maintain boundary fence

Question 14

What is a positive easement

Answer 14

Allows dominant owner to do something

Question 15

What is a negative easement

Answer 15

Prevents servient owner from doing something

Question 16

What negative easements are recognised at law

Answer 16

Air light and support

Question 17

Main rule regarding easement of support

Answer 17

Servient owner cannot deliberately withdraw support

Question 18

Methods by which easements are created

Answer 18

Express grant or reservation 
Necessity
Common intention 
Wheeldon v burrows
S62 LPA
Prescription

Question 19

Requirements to create an easement through express grant

Answer 19

Execute deed

Knowingly and deliberately

Question 20

Requirements to create easement using express reservation

Answer 20

Seller reserves rights over land they’re selling

Retained land is dominent land. Sold land is servient land

Question 21

Requirements to create an easement implied by common intention

Answer 21

Applies to grants and reservations

Land conveyed for purpose known to grantor and easement is essential for purpose

Question 22

Requirements for easement to be implied by necessity

Answer 22

Applies to grants and reservations

Land locked land which cannot be used without easement

Question 23

Requirements to create an easement using wheeldon v burrows

Answer 23

Only applies to grants not reservations
Only to grant in favour of buyer, not seller
Coverts quasi easements into easements when land is sold
Conditions:
Right must be continuous and apparent
Right must be necessary to reasonable enjoyment of land sold
Right must be in use at time of sale

Question 24

Meaning of continuous and apparent

Answer 24

Habitual enjoyment

Obvious on inspect of land by person familiar with subject eg surveyor

Question 25

Meaning of necessary for reasonable enjoyment of land

Answer 25

Less stringent that implied by necessity

Alternate route may not defeat claim

Question 26

How does s62 LPA imply an easement

Answer 26

If nothing contrary in the deed conveyance passes to buyer all the rights

Question 27

Conditions for operation of s62 LPA

Answer 27

Must be a conveyance
Diversity of occupation (unless easement of light or continuous and apparent)
Existed at time of conveyance
Right must be capable of being an easement (ellenbrugh park)

Question 28

How is an easement implied through prescription

Answer 28

Use for 20 years
Continuously and as of right (without force, secrecy and permission)
Common law- not if it can be shown to be used or possible at some point since 1189 eg same owner
Lost modern grant- it is ok if at some point was owned by same person and it’s ok if there is a gap exceeding 1 year
Prescription act- 20 years easement or 30 years profit. Short beaks are ok but cannot have interruption for more than 1 year

Question 29

What does without secrecy mean

Answer 29

Reasonable person in position of servient owner would have reasonable opportunity to discover it