Easements Flashcards
What are Legal Easements?
Must be granted for a period of time equal to a freehold or leasehold (forever or for a certain term of years absolute).
What are Equitable Easements?
An easement granted for an uncertain period of time.
When is a right over land capable of being an easement?
Re Ellensborough Park:
(1) Must be an identifiable dominant and servient tenement;
(2) The dominant tenement itself (not the owner) must be benefitted by the easement, meaning some value or amenity to the land is added + land sufficiently proximate to each other;
(3) Must be owned by two different people;
(4) Must lie in grant (e.g grantee has title and capacity + judicially recognised + capable of exact description).
What are the factors which disqualify a right to use land from being an easement?
(1) Easement amounts to exclusive possession of the servient tenement (does servient owner retain ultimate possession & control);
(2) Exercise of right must not depend on permission from servient owner;
(3) Must not necessitate unavoidable additional expenditure (dominant owner responsible for maintenance req to fully enjoy easement, right to supply hot water therefore not an easement).
How is an easement created expressly and legally?
easement expressly set out in transfer deed/legal lease.
Must comply with formalities for deed (LPMPA 1981, s 2) = clear as deed on face of it, signed by grantor, witnessed/attested and dated. Must be registered against the title of the dominant tenement.
If fails on formalities as legal easement, may be recognised as equitable estate contract if s.2 LPMPA 1989 satisfied (in writing, incorporating all terms and signed by both parties).
Implied Creation by Necessity
applies to grants and reservations
applies only to land which would otherwise be landlocked. Even if there is another method of accessing the land which is difficult or inconvenient, still would not apply. However, has seemed to loosen up recently and might include implying a right of way for a vehicle where there is right of way on foot.
Implied Creation by Common Intention
applies to grants and reservations but hard to prove for reservations.
Easement will be legal or equitable depending on the document it is implied into.
Where both parties to the transaction have a definite and particular purpose for which the land is sold and the easement is necessary to carry out that purpose on the land (e.g selling plot with planning permission).
Might be included where necessary for enjoyment of another easement (e.g right of way to access right to park).
Implied Creation by Rule in Wheeldon v Burrows
GRANTS ONLY.
Where land is owned by one person then it is divided by sale / lease of part. Any quasi-easements existing become full easements benefitting the land which has become the dominant tenement.
- Right must have been continuous and apparent on reasonable inspection (degree of permenance + evident);
- Necessary for reasonable use of land (enhances land);
- Used recently and likely in foreseeable future by common owner at date of transfer.
Can exclude this in contract.
Implied by Rule in s.62 LPA 1925
Applies only to GRANTS of LEGAL easements.
Under s.62, when land is transferred by deed (whether lease or freehold), the buyer or tenant will receive the benefit of all existing easements affecting the land (whether expressly or impliedly granted). Also upgrades informal permissions or licenses to use servient land into full legal easements.
Used where:
1. Land divided (and owned by different people) then informal permission is given + land re-let or sold;
2. Land not divided but rights are continuous and apparent + land divided for first time by lease / sale of part.
By Prescription
Where use for 20+ years continuously (period of 1 year plus constitutes an interruption) and where use is without force, permission or secrecy. Creates a legal easement only.
Enforcement - Express Legal Easements
Burden always passes to new servient owner because the easement has to be registered to be enforceable.
Enforcement - Implied Legal Easements
Burden passes to new servient owner as an overriding interest under Sch 3 LPA if:
(a) the new servient owner had actual knowledge of the easement;
(b) easement was obvious on reasonably careful inspection of the land;
(c) easement in use in the last year.
Enforcement - Equitable Easements (express and implied)
Enforceable against new servient owner only if a notice is entered on the Land Register (registered land) or a charge is entered on the Land Charges Register (unregistered land).
Volunteers will always be bound however.
What are the remedies for breach of easement?
prohibitory or mandatory injunction/ damages
How does the benefit of an easement pass?
To the new dominant owner ALWAYS via s.62 on transfer or lease of the land.
