Easements

Question 1

What is an easement?

Answer 1

A right for one landowner to make use of another parcel of land for the benefit of their own land.

Question 2

What is a profit (or profit a prendre)?

Answer 2

A right to go on to somebody else’s land and remove from the land something which exists naturally such as fish, minerals and animals.

Question 3

Are easements capable of being legal?

Answer 3

The right must be granted for the equivalent of either an estate in fee simple absolute in possession (forever) or a fixed ascertainable duration.

Question 4

What are the formalities for creating a legal easement?

Answer 4

A deed is required to create a legal easement.

Question 5

What is the servient tenement?

Answer 5

The land over which the easement is exercised (the burdened land)

Question 6

What is the dominant tenement?

Answer 6

The land that enjoys the right (the benefitted land)

Question 7

What is a grant?

Answer 7

The land owner creates an easement in favour of the buyer

Question 8

What is a reservation?

Answer 8

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

Question 9

Can new types of easement be recognised?

Answer 9

New types of easement are generally recognised as being analogous to existing easements.

Question 10

What are the four essential characteristics that must be present for an easement ot exist?

Answer 10

There must be a dominant and a servient tenement.

The easement must accommodate the dominant tenement as opposed to the owner in their personal capacity. However, it is not necessary for the tenements to join each other, they should just be close enough to establish a connection.

The dominant and servient tenements must not be both owned and occupied by the same person (principle of diversity). It is satisfied in relation to a landlord ad tenant situation.

The easement must be capable of forming the subject matter of the grant.

Question 11

How can an easement be capable of forming the subject matter of a grant?

Answer 11

An easement must be clearly defined and must not be too vague and too indefinite. There is no general right to light unless it is enjoyed via a defined aperture.

An easement must not involve any expenditure by the servient owner. a positive obligation on the owner of the servient tenements to do something is inconsistent with the existence of such an easement.

An easement cannot give exclusive, joint or substantially permanent possession of the servient tenement. It must not be so extensive as to exclude the grantor completely from possession of the servient tenement. This is judged both on the amount of space used and the amount of time taken.

The law is very cautious when it comes to a claim for a new type of negative easement. A negative easement is where the right exercised by the dominant owner prevents the servient owner from doing something on their land. The only negative easements recognised at law are those of light, air and support.

Question 12

Is there an easement of parking?

Answer 12

The right to park would not be an easement if the effect of it was to leave the servient owner without any reasonable use of their land.

Question 13

How is an easement created by express grant/reservation?

Answer 13

An express grant of an easement is where the servient owner executes a deed granting the dominant owner an easement over land owned by the servient owner.

An express reservation is where the seller reserves/retains rights over the land they are selling.

Question 14

How is an easement created by implied necessity?

Answer 14

If without the easement the property cannot be used at all, and not merely necessary to the reasonable enjoyment of the property. A claim for an easement of necessity would, therefore, be defeated if there was an alternative means of access, even if that alternative access was dangerous.

Question 15

How is an easement implied by common intention?

Answer 15

Where land is conveyed for a purpose known to the grantor, any easement over land retained by the grantor which is essential in order for that purpose to be carried out is implied into the grant in favour of the grantee.

Question 16

How is an easement created by the rule in Wheeldon v Burrows?

Answer 16

Applies only to the grant of an easement.

Occurs when a land owner sells part of their land. Any quasi-easements exercised by the landowner will pass to the buyer subject to the existence of a quasi-easement prior to sale, the right being continuous and apparent, the right being necessary to the reasonable enjoyment of the land sold, and the right being in use at the time of sale.

Question 17

How is an easement created by s.62 LPA 1925

Answer 17

On a conveyance of land, if nothing to the contrary is stated in the deed, the conveyance is deemed to pass to the buyer not just the buildings and fixtures but all liberties, privileges, easements, rights and advantages whatsoever appertaining or reputed to appertain to the land or any part thereof or at the time of the conveyance enjoyed with the land.

There must a conveyance as defined in s.205(1)(ii) LPA 1925, there must be some diversity of occupation of the two parts o land, there must be an existing privilege at the date of conveyance, the right must be capable of being an easement.

Question 18

How is an easement created by prescription?

Answer 18

Where the dominant owner can show use of the right for 20 years, the court will uphold the legal right by presuming that it had a lawful origin.

It will be necessary to show that the right has been exercised continuously and as of right (without force, secrecy or permission).

Question 19

What is prescription at common law?

Answer 19

The grant of an easement is presumed if it has been enjoyed continuously as of right since time immemorial, since 1189. It is presumed that a user for 20 years or more is proof of use since 1189.

The presumption can be rebutted by showing that the right was not exercised, the right could not have been exercised or that the tenements were vested in the same owner.

Question 20

What is prescription under the doctrine of Lost Modern Grant?

Answer 20

The grant of an easement is presumed if it has been enjoyed continuously as of right for 20 years or more on the basis that there is a presumption that there was a grant of the right since 1189 but that the grant has been lost. The doctrine is a total fiction and is a last resort where it is not possible to rely on prescription at common law or under the Prescription Act 1832.

Question 21

What is prescription under the Prescription Act 1832?

Answer 21

If the dominant owner can show user as of right for 20 years (30 years for profits) then they will obtain a prescriptive easement even though the user clearly commenced sometime after 1189.

The claimant must prove uninterrupted enjoyment for a period of at least 20 years which immediately precedes and which terminates in an action (s.4 Prescription Act 1832). The period of 20 years is counted backwards from the date of the action. Any interruption in use lasting a year or more stops time running.