easements

Question 1

what is an easement?

Answer 1

a limited proprietary right for one landowner to make particular use of the land of another landowner

Question 2

Which case set out the criteria for easements?

Answer 2

Re Ellenborough park (1956)

Question 3

what are the criteria for an easement?

Answer 3

1. there must be a dominant servient and a servient tenement
2. the right must benefit the dominant tenement
3. there must be diversity of owners
4. purported easement must be capable of forming the subject matter of the grant

Question 4

what is the dominant tenement?

Answer 4

the land with the benefit of the right

Question 5

what is the servient tenement?

Answer 5

the land subject to the right, the land over which the easement is exercised

Question 6

what is meant by the right must benefit the dominant tenement?

Answer 6

the right needs to directly benefit the land rather than the owner

Question 7

what is meant by the fourth criteria?

Answer 7

The right must have been granted by someone with the power to do so, and to a person who can benefit the easement.
The right must be sufficiently definite to be an easement
the right has to be in the nature of an easement

Question 8

when does a legal easement bind a purchaser?

Answer 8

always, regardless of whether they knew of it

Question 9

what does the right have to be granted to in order to be a legal easement?

Answer 9

a freehold estate or for a term of years absolute

Question 10

when does an equitable easement bind a purchaser?

Answer 10

only if they had knowledge

Question 11

how can easements be created?

Answer 11

expressly or impliedly or by prescription

Question 12

what are the express forms of creation?

Answer 12

grant or reservation by a deed

Question 13

what are the implied methods of creation?

Answer 13

by necessity
by common intention
Wheeldon v Burrows rule
LPA 1925 s62

Question 14

how does necessity work?

Answer 14

you need to show that it is essential for any use of the land to be enjoyed
E.g., land which without the implication of an easement, would be landlocked and inaccessible

Question 15

how does common intention work?

Answer 15

the parties have to show a clear intention that the easement is intended for a specific purpose

Question 16

what is the rule in Wheeldon v Burrows?

Answer 16

when an individual conveys their own land to another, there will be implied into that conveyance the grant of all quasi-easements that were exercised by the seller prior to transfer

Question 17

what are quasi-easements?

Answer 17

rights that would be easements but for the fact that the land in question is in common ownership

Question 18

why is the method by which an easement is made important?

Answer 18

as it determines whether the easement is legal or equitable

Question 19

how does operation of s62 LPA 1925 create an easement?

Answer 19

operates in circumstances where a landowner sells or leases part of their land to another person. Where there is a conveyance of land, the conveyance carries with it automatically all rights and benefits that are attached to the land conveyed

Question 20

how is prescription acquired?

Answer 20

by long and continuous use ‘as of right’

Question 21

what is meant by ‘as of right’?

Answer 21

without force, without secrecy and without permission

Question 22

what are the three kinds of prescription?

Answer 22

Common law prescription
Lost modern grant
Prescription Act 1832

Question 23

what is common law prescription?

Answer 23

where alleged easement is enjoyed since time immemorial (1189)
20 years will suffice

Question 24

what is lost modern grant?

Answer 24

need to show continuous use for 20 years and the courts will assume there was a deed
this can be any 20 year period

Question 25

what is the prescription act 1832?

Answer 25

last 20 years with no interruptions
where the use has been discontinued or interrupted use lost modern grant

Question 26

what are the remedies for the breach of an easement?

Answer 26

damages
declaration
equitable remedies
court order

Question 27

when will an easement be terminated?

Answer 27

unity of ownership - same person owns servient and dominant tenement
deed of release - owner of dominant tenement can release his rights over the servient tenement by deed
abandonment by dominant owner - no use of the easement for a long time, abandonment is presumed unless there was no occasion to use the right
no statutory power of release

Question 28

what are the registration rules for express easements?

Answer 28

under s27(2)(d) LRA 2002 they must be registered to be a legal easement
if not registered will only be equitable and therefore not binding on a purchaser of the servient land

Question 29

what are the registration rules for equitable easements?

Answer 29

you must put a notice on the register but this doesn’t guarantee that its enforceable

Question 30

what are the registration rules for implied and prescriptive easements?

Answer 30

it is unreasonable to expect them to be registered because they are informally created

Question 31

what are prescriptive easements and most implied easements until they are registered?

Answer 31

overriding interests

Question 32

what does Sch 3 Para 3 LRA 2002 set out?

Answer 32

conditions for an easement to be an overriding interest that will be binding on a buyer

Question 33

what are the conditions for an easement to be an overriding interest that will be binding on a buyer?

Answer 33

1. buyer knows of the easement
2. the easement is obvious on a reasonably careful inspection of the land
3. the easement has been exercised within the period of one year before disposition