Easements

Question 1

What is an easement?

Answer 1

Right for one land owner to make use of another parcel of land for the benefit of their own land.

Question 2

Are easements capable of being legal?

Answer 2

Easements are capable of being leal provided they are granted for the equivalent of either a freehold or leasehold.

As such, an easement which has an uncertain duration will not be capable of being legal and will exist in equity only.

Question 3

What is a requirement of a legal easement?

Answer 3

It must be created by deed. This deed must meet the requirements in s1 LPMPA 1989.

Question 4

What is a servient tenement?

Answer 4

The land over which the easement is exercised.

Question 5

What is a dominant tenement?

Answer 5

The land which the easement is benefiting (ie the land which enjoys the right).

Question 6

What is a reservation?

Answer 6

The land owner creating an easement in favour of their own land when selling to a buyer.

Question 7

What are the essential four characteristics of an easement?

Answer 7

1) There must be a dominant and servant tenement;
2) There easement must accommodate (benefit) the dominant tenement;
3) The dominant and servient tenements must be owned by different people;
4) The easement must be capable of forming the subject matter of a grant (ie the subject matter of the easement being capable of being created in favour of the buyer of the land).

Question 8

What needs to be considered where determining whether the easement accommodates (benefits) the dominant tenement?

Answer 8

Proximity of the dominant and servient tenements. They must be sufficiently proximate for the servient to benefit the dominant.

Question 9

The easement must benefit the land itself, and not just the owner in a personal capacity.

What two considerations are valid here?

Answer 9

1) Does the right improve the marketability of the land; and/or
2) Would any owner of the land see it as a benefit.

Question 10

Does the principle of diversity of ownership in relation to the dominant and servant tenement cover landlord tenant situations?

Answer 10

Yes. Landlord owns freehold and grants lease over certain part of the land. Two people then occupy the different tenements and this therefore qualifies as diversity of ownership.

Question 11

What four elements are required to satisfy the fourth requirement (that an easement will be capable of forming the subject matter of a grant)?

Answer 11

a) An easement must be capable of reasonably exact definition;
b) An easement must not involve any expenditure by the servient owner;
c) An easement must not be so extensive as to amount to a claim to joint possession of the servient land;
d) The law is very cautious when it comes to a claim for a new type of negative easement.

Question 12

Can an easement of light exist?

Answer 12

Yes provided it is sufficiently definite and the light is enjoyed via an aperture such as a window.

The light must also be sufficient according to the usual notions of mankind for the comfortable enjoyment of the building (bearing in mind the type and locality of the building).

Question 13

Can a right to a view be an easement?

Answer 13

No.

Question 14

Can a right to use the land for recreational purposes be an easement?

Answer 14

Yes in certain situations.

Re Ellenborough Park determined that the communal garden was analogous to the use of the garden attached to a house. As such the right to use the land for recreational purposes can be an easement should it be analogous to the use of the property.

Question 15

a) Can an easement impose a positive obligation on the owner of a servient tenement?

b) Explain the exception?

Answer 15

a) No. Eg if the easement is a right of way, the owner of the servient tenement is under no obligation to maintain this. The easement would simply allow the owner of the dominant tenement to maintain the right of way if they so chose to.

b) requires the owner of the adjoining land to keep the boundary fence in repair (limited to a rural setting but in this instance the owner of the servient would suffer a positive obligation under the easement).

Question 16

Can there be an easement to park?

Answer 16

Theoretically possible for an easement to park. This is so long as the parking does not leave the servient owner with no reasonable use of the land.

Question 17

Explain the requirement that an easement must not be so extensive as to amount to a claim to joint possession of the servient tenement.

Answer 17

The easement cannot give exclusive, joint or substantially permanent possession of the servient tenement (ie the claimed easement must not be too extensive).

Question 18

List the ways an easement can be created.

Answer 18

• Express grant/ reservation
• Implied necessity
• Implied by common intention
• The rule in Wheeldon v Burrows
• S62 LPA 1925
• Prescription

Question 19

Explain easement by way of express grant/reservation.

Answer 19

Express Grant: Servient owner executes deed granting dominant owner easement over servient’s land. The agreement must be made knowingly and deliberately

Express Reservation: Where the seller reserves/ retains rights over the land they are selling. The land retained becomes the dominant land and the land sold, the servient land.

Question 20

Explain easement implied by common intention

Answer 20

An easement will be implied into the grant/reservation where it is needed to ensure the common intention of the parties is met.

Question 21

Explain easements created by the rule in Wheeldon v Burrows.

Answer 21

• Applies only to a grant of an easement and not a reservation.
• It converts a quasi-easement into an easement.

Question 22

What four criteria need to be satisfied for the quasi easement rule under Wheeldon v Burrows to apply?

Answer 22

a) the existence of a quasi easement prior to sale;
b) the right must be continuous and apparent;
c) the right must be necessary to the reasonable enjoyment of the land sold;
d) the right must be in use at the time of the sale.

Question 23

Give an example of what may be deemed a quasi easement.

Answer 23

Rights exercised by a land owner over their own land cannot be an easement. However, such rights can be described as a quasi easement (ie has the characteristics of an easement apart from diversity of ownership).

Question 24

Explain requirement for a quasi easement to be continuous and apparent (Wheeldon v Burrows).

Answer 24

A form of habitual enjoyment obvious from inspection of the land. This must be a careful inspection by someone knowledgeable on the subject.

Question 25

Explain requirement the right must be necessary to the reasonable enjoyment of the land sold (Wheeldon v Burrows).

Answer 25

The presence of an alternative right may not necessarily defeat the claim.

EG right of way (where the alternative route is just as convenient) will not be. Where the alternative route is dangers or takes far longer, it likely will be necessary to reasonable enjoyment.

Question 26

What are the conditions for s62 LPA 1925 to apply?

Answer 26

1) Must be a conveyance (as per s205 LPA 1925). This requires an instrument (ie written document) transferring a legal estate (eg mortgage, lease). Does not include contracts for sale.

2) Must be diversity of occupation at the time of the grant. This is not necessary where:
a) it is an easement of light;
b) where rights are contuse and apparent.
As such diversity of occupation negates need for right to be continuous and apparent.

3) There must be an existing right at time of conveyance. S62 does not apply to future rights.

4) Right must be capable of being an easement (as per Re Ellenborough criteria).

Question 27

Explain the general principle of s62 LPA 1925.

Answer 27

Operates to pass all existing rights to the buyer without the necessity of formal words used in the conveyance.

Question 28

Name the three types of easement by prescription.

Answer 28

• Common law
• Lost modern grant
• The Prescription Act 1832

Question 29

What is required for an easement for prescription via any of the three types?

Answer 29

Whichever method of prescription is relied on, its necessary to show the right has been exercised by or o behalf of a fee simple owner against a fee simple owner:
- continuously (can be continuous use by multiple freehold owners); and
- as of right without:
a) a force (ie not removing obstacles/ ignoring protest of servient owner);
b) secrecy (servient owner must have had reasonable opportunity to discover this right was being exercised and must not be hidden)and
c) permission (in writing or orally. evidence of payment to servient owner is evidence of permission).

Question 30

Explain easements by prescription at common law.

Answer 30

if right has been enjoyed since 1189 (however for these purposes it is presumed this is the case if exercised for 20 years or more).

Presumption can be rebutted if:
- the right was not exercised;
- the right could not have been exercised;
- dominant and servient tenement vested in same person.

Question 31

Explain easements by prescription - by LMG.

Answer 31

Grant of easement is presumed if right has been continuously enjoyed for 20 years or more. This is a last resort.

Question 32

Explain easements created by prescription under the Prescription Act 1832.

Answer 32

If dominant owner can show user of right for 20 years they obtain prescriptive easement. Claimant must prove uninterrupted enjoyment for a period of at least 20 years which immediately precedes the action being brought. (note short interruptions are fine, but anything more than a year will restart the 20 year time period).

Question 33

What is the effect of s62 LPA 1925?

Answer 33

Licence will be converted into an easement where occupier of land has been permitted to undertake some activity on and owned by another, and then the owner of that land sells (conveys) the land to another who subsequently claims the benefit of the right (ie the new owner is obligated to abide by the easement by way of prescription).