Easements Flashcards
What is an easement?
A proprietary right to use and enjoy the land which belongs to somebody else
More limited than exclusive right to occupy/use
E.g. right of way, drainage, storage, parking on neighbouring land
What are the dominant and servient tenements and the grantor and grantee?
- Grantee = person who receives benefit of easement - their land is the dominant tenement
- Grantor = person who grants the easement - their land, which is burdened by the easement, is the servient tenement
What is the difference between a legal and equitable eaement?
- Legal = granted for a certain term or forever (E.g. right of way granted when part of freehold land is sold will be granted forever, right of drainage granted in a 5 year lease will be granted for that term)
- Equitable = granted for an uncertain term or failed formalities (E.g. right to park which is granted until the alternative parking facility is completed can only be equitable)
What is the difference between positive and negative easements?
- Positive = allow holder to enter/use servient land (right of way, drainage through pipes under land)
- Negative (rare) = do not involve entering/using servient land and instead prvent servient land owner from doing something on their land by giving the dominant land owner a right to receive something
What negative easements are recognised in law?
- Right to light (no automatic right - do not attach to gardens or open land
- Right to air
- Right of support (e.g. from dividing wall between semi-detached houses)
What are quasi-easements, public rights, licences, profits a prendre?
All should not be confused with easements
- Quasi-easements - potential easement, used by landowner on own land, when land divided
- Public rights - rights exercised by general public rather than individual/particular body
- Licences - authorises use of land but merely confers personal right which cannot be enforced against third party
- Profits a prendre - confers right to take something (e.g. produce, animals, minerals)
- Restrictive covenants
What is the difference between an easement and a restrictive covenant?
- Easement = confers right over servient land; servient owner cannot do anything on their land that would interfere with right
- Restrictive covenant = restricts what can be done on servient land
Cf licences too - licence is personal right (not proprietary like easem)
What is the difference between a grant and a reservation?
- Grant = landowner sells/leases their land and gives an easement over the land they have retained (e.g. right of way in grantee’s favour)
- Reservation = landowner sells/leases their land and retains right over that land (right of way in their favour)
How is a reservation construed?
I.e. if it is uncertain
Strictly against the person reserving it - they are assumed to have reserved exactly what is required; any attempt to extend right will fail
Interpreting it more widely = derogating from grant
E.g. Cordell - reserved right of way 12 feet wide, later sought declaration he was entitled to 28 feet wide - claim failed as he should have specifically stated this in transfer deed
How are easements created?
- Expressly = in document complying with formalities
- Impliedly = without writing, implied into document (deed, lease, contract) from which it was originally omitted
Implied by grant e.g. Part of C’s land is sold by C to D. In the transfer deed there is no right mentioned for D use the drain which runs under C’s land which was used by C for the benefit of the land sold to D before the land was divided
Do easements have to be created as part of a sale/lease?
No, can be expressly created as part of a separate deal
Where can legal easements be created by prescription (/long use)?
NB prescription is just a different way of an easement bering acquired (than express or implied)
Where there is uninterruped user for at least 20 years reasonably regularly where right exercised without force, secrecy or permission
Servient owner is deemed to have tolerated creation of easement
For prescription, who must use the right and who against?
A freeholder against another freeholder
Not a tenant!
Must a legal easement created by prescription be registered?
No - benefit will pass to new owner without registration if created by prescription
What happens if there is no use of potential easement by prescription for one year or more?
There has been an interruption; no easement
What does without force, secrecy and permission mean?
- Force = ignoring protests of land owners or removal of signs
- Secrecy = servient landowner must have reasonable opportunity to discover the right
- Permission = if dominant land owner makes payment
Must be without all 3
E.g. Winterburn - a sign that had been erected and replaced meant car parking of customers at fish and chip shop could not be an easement; had been used by force
What are the 4 tests that must be met before a right can be recognised as an easement rather than simply a personal right?
- Must fall within definition of easement as to duration (i.e. for equivalent of freehold/leasehold - otherwise can only be equitable)
- Right must be capable in principle of being an easement (Re Ellenborough tests)
- Must not be prevented from being an easement by a disqualifying factor (3 Ps)
- Right must have been acquired as an easement
What are the 4 requirements for an easement to be capable of being an easement in principle? i.e. the capability rules
Re Ellenborough Park
- Must be a dominant and servient tenement
- Right must accomodate dominant tenement (if right benefits business = will benefit land if business is connected to use of land)
- Must be no common ownership
- Right must ‘lie in grant’
How will there be a dominant and servient tenement?
Capability rule 1
Two identifiable pieces of land; one benefitting from exercise of the right (dominant tenement) and one burdened by its exercise (servient tenement)
Cannot exist independent of land - must attach to it
What if the ‘easment’ is exercised by the holder independently of the land?
Exists in gross and will be a licence/personal right (not an easement)
What does it mean for the right to accomodate the dominant tenement?
Capability rule 2
The right must have some direct beneficial impact on the dominant tenement (land not the owner!)
Can make land more valuable for example
When should the right have a direct beneficial impact on the dominant land owner?
Only for the time whilst they own the land - should not continue if they sell
Easement benefits the land not the owner
Will the right have a direct beneficial impact on the dominant tenement if it benefits a business on that land?
If the business is a necessary incident to the use of the land i.e. an established business is the normal use of the land
If C happens to carry out business on land which benefits = not easement
Must the two pieces of land be adjoining to accomodate the dominant tenement?
Normally yes, but sufficient proximity is fine (even if land separating them owned by someone else)
E.g. right of way over a field in between two owned fields still benefitted dominant tenement; close enough for dominant land to derive a benefit from right
What does it mean that there must be no common ownership of the two tenements?
Capability rule 3
Dominant and servient land must be owned by different people; owner cannot claim easement over own land
If A leases part of their freehold to B, will there still be common ownership?
No, will be diveristy of ownership and an easement
E.g. C owns freehold of land, grants lease to D, may also grant easements with the lease
What happens if dominant and servient land, which between them had an easement, came back into common ownership?
E.g. lease expires and comes back into sole ownership, buys land back
The easement would be extinguished
E.g. D’s leasehold comes to an end and C is once again sole freehold owner of land; easements extinguished
What does it mean that the right must lie in grant?
Capability rule 4
Right must be capable of forming subject-matter of deed - right must be:
- Granted by a capable grantor to a capable grantee (over 18, own the legal estate, capable, not to a ‘body’ of people)
- Capable of being reasonably exact description (nature and extent clear enough for court e.g. not a ‘scenic view’); and
- Judicially recognised
What rights have been judicially recognised as easements?
- Right of way
- Right of drainage and other rights through pipelines
- Right of support
- Right to use sporting and leisure facilitites
- Right to use land for recreational purposes
Not exhaustive list and new rights can be recognsied
What can a new type of easement not be?
Negative in nature e.g. right to protection from weather
So as to not unduly restrict servient owner’s use/development of land
Appropriate way to restrict development on sale of land would be to impose a covenant
What are the 3 disqualifying factors that can prevent the right from being capable of being an easement? (the 3 Ps)
Even though it has passed Ellenborough tests
Exercise of right must not…
1. Amount to exclusive possession of servient tenement (possession)
2. Involve additional, unavoidable expenditure by the servient owner (payment)
3. Depend on permission being given by servient owner (permission)
Easement is a right, any of these make it not an easement
What is the test used to decide whether a right amounts to exclusive possession?
The reasonable use test (AKA the ouster principle): where the servient land owner is left with no reasonable use of the land (e.g. easement granted allows dominant land owner to use single parking space on servient land all day)
I.e. where ownership is curtailed altogether for intermittent periods
Another test (possession and control) - will not be exclusive possession if servient owner retains ultimate possession and control of land subject to reasonable exercise of right - also used but not preferred
‘Land’ here can mean only the space relevant for the easement (e.g. storage shed) rather than entire plot of land
Does the rule of no additional expenditure rule mean the servient tenement owner is not obliged to carry out repairs to enable dominant owner to enjoy an easement?
Yes - but they must allow dominant owner onto servient land to carry out repairs at dominant owner’s expense
What happens where a servient owner is solely responsible for bill payment for an easement of water supply?
They pay the bill, but dominant owner was liable in quasi-contract to pay his share
Will permission the first time a right is used engage the disqualifying factor of permission?
No - will inevitably have to be given
If dominant owner asks for permission every time = not an easement
When will easements be created expressly?
- As part of land being sold/leased as part of the deed/lease
- Independently of a transfer/lease as part of a separate deal
What are the requirements for creating an express legal easement?
- Right must be granted or reserved forever/set period
- Must be created by deed
- Must be substantively registered
Failing these - may be equitable
Must the easement be substantively regsitered?
If the servient land is registered, yes
Where is the easement registered?
- Benefit noted on Property Register of dominant land’s title
- Burden noted on Charges Register of servient land’s title
What is the difference between inherently equitable easements and an estate contract recognised as an express equitable easement (contract to grant legal easement)?
- Inherently equitable easement = right granted for uncertain term, created in writing and signed by grantor
- Estate contract (to grant legal easement) i.e. failed legal easement = (right granted for certain term but) formalities not complied with but is in writing, contains all agreed terms and is signed by both parties (s2 LP(M)A)
What are the 4 ways in which an easement can be impliedly acquired?
- Necessity
- Common intention
- Wheeldon v Burrows
- s62 LPA
Which of the four ways are available for a grant and reservation situation?
- Grant situation = all can be used
- Reservation situation = only necessity and common intention
I.e. reservation cannot be used for Wheeldon or s62, grant can be used for necessity, common intention, Wheeldon and s62
When you go out for dinner with someone, it is necessary to book a table and this would be a common intention
When will an easement be implied by necessity and what easements can this be?
- Only where its existence is essential in order than dominant tenement may be used
- Only type of easement can be implied this way is right of way to otherwise landlocked land
Can be granted or reserved
Will right of way be implied by necessity if alternative access is inconvenient or difficult?
E.g. only way to land was to river
No - still able to use
Will easements be implied by necessity if they are highly advantageous?
E.g. easements for drainage, sewerage and supply of electricity
No - they are not essential to use dominant land
Necessity = absolut enecessity; land cannot be used at all without easem
Will right of way be implied if a third party could grant a right of way over their neighbouring land?
No
Where might necessity be given a wider meaning and an easement implied?
Where a right of way by foot already exists and a right of way by vehicle is implied by necessity
Implies land not accessible by vehicle is effectively incapable of use
When will an easement be implied by common intention?
3 conditions
Where:
- Dominant land sold/leased for specific purpose (e.g. restaurant)
- Purpose is known to both parties (e.g. both parties knew would be used as restaurant)
- Easement claimed essential to achieve common purpose (ventilation essential to comply with regulations)
E.g. Wong - lease granted to use basement premises only as a restaurant and contained covenant to comply with health and safety regs - needed to be connected to ventilation system on landlord’s retained land to comply with regs - landlord refused to allow easement but court said easement should be implied into original lease
For an easement to be implied by common intention, must it be necessary for enjoyment of land?
No
Will a general intention be enough to imply an easement through common intention?
No - parties must intend for property to be used in some definite and particular manner
Can a seller/landlord rely upon an easement having been impliedly reserved by common intention?
Yes - but this is rare and there is a heavy burden
Less likely if landlord had opportunities to reserve this expressly
What will an implied legal easement and implied equitable easement be implied into?
- Implied legal easement = implied into transfer deed/lease
- Implied equitable easement = implied into contract or equitable lease
What will an implied easement take its status from?
The document it is implied into e.g.implied into legal lease = implied legal easement
If the implied easement is implied into a transfer deed or lease, for how long will it last?
- Into transfer deed = lasts along with the freehold
- Into lease = comes to end when lease comes to end
What is the difference between s62 and Wheeldon v Burrows?
As both can operate where land is divided for the first time
- WvB = can work to imply an easement into a contract or equitable lease
- S62 = will only work for conveyances
But can have the option to use both!
What does the rule in Wheeldon v Burrows allow to be implied?
Quasi-easements - where land divided for first time by transfer or lease
Newly transferred land/leased land becomes dominant land
Is the Wheeldon v Burrows method of implied acquisition available for grants and reservations?
No - only where someone claiming to have been granted an easement impliedly
What are the 5 requirements for Wheeldon v Burrows implied easements?
- Only where right being claimed would have been a grant to C
- Right must have been enjoyed as a quasi-easement by seller/landlord before land divided
- Quasi-easement must have been continuous and apparent
- Quasi-easement must be necessary for reasonable enjoyment of dominant land
- Quasi-easement must be in use by common owner at date of transfer/lease of dominant land
What is the effect of Wheeldon v Burrows rule?
Any quasi-easements that existed at the time of division enjoyed by owner can become full easements benefitting the land which has now become the dominant tenement
Provided requirements are met
WILL BE COMMONLY EXPRESSLY EXCLUDED FROM RELEVANT TRANSFER CONTRACT OR LEASE
How will a right be continuous and apparent?
- Continuous = some degree of permanence (not constantly/incessantly)
- Apparent = evidence on the land that it exists e.g. track/drain cover (clue from careful inspection of land)
How will a right be necessary for the reasonable use of the land?
If the right enhances the land in some way (for convenient and comfortable enjoyment)
Less strict test - can oust onerous alternatives (I think)
But not permitted if there are equally convenient alternatives
When will a right be in use by the common owner at the date of transfer of the lease?
Right must have been enjoyed as a quasi-easement by the seller/landlord before land divided at the time of the transfer/lease of dominant land
Matter of fact
Must the right have been in use by common owner immediately prior to sale/lease of the now-dominant land
No - but must be shown to have been enjoyed in the past and expected to be used again in near future
Would Wheeldon v Burrows operate where a common owner - who used the quasi-easement - sold the servient land to A and dominant land to B contemporaneously?
I.e. the new owner of dominant land did not use quasi-easement
Yes!
What are the only easements to which a s62 implied acquisition applies?
Grants only (not reservations)
What is the only type of transaction where s62 will take effect?
Will only work if there is a conveyance (a legal lease or transfer deed to imply easement into)
Will not imply into contract or equitable lease (which is why Wheeldon v Burrows is not obsolete)
What does s62 do?
2 effects
- Upgrades informal permissions into formal easements when land is sold/leased
- Where land is divided for first time, will imply all ‘continuous and apparent’ rights used by common owner before lease/transfer into the deed as an easement
What are the requirements for the upgrade effect of s62?
- Only applies where right being claimed would have been a grant to the C
- There must have been prior diversity of occupation of the dominant and servient land
- An informal permission or licence must have been granted to the occupier of the dominant tenement to use servient land in some way
- Must have been a conveyance (transfer by deed/legal lease) of the dominant tenement
Last 3 requirements are sequential
Wright - tenant granted short term lease of a flat, during lease the tenant was granted a right to store coal in landlord’s coal shed (an informal permission only) - initial lease expired and new lease was granted to tenant - court held that on grant of new lease, the informal permission was upgraded to an easement which was implied into the new lease
Is diversity of occupation a pre-requisite for s62?
I.e. will s62 apply where land is divided for the first time?
Not necessary where right used by previous owner is continuous and apparent (quasi-easement)
Exercised recently and regularly + physical evidence
E.g. Platt v Crouch - Crouch family owned hotel and island, would moor boats on shore of island, sold hotel to Platt and deed contained nothing of an easement re island - held that s62 could operate beyond tenant-landlord situations to situations where the quasi-easements are continuous and apparent - implied into lease when the land first divided
Will implied legal easements under s62 be legal or equitable easements?
Only legal easements - easement implied into transfer deed/lease is an implied legal easement as the easement takes status from document it is implied into
Will not imply an equitable easement into a sale contract or equitable lease
What is meant if a right is enforceable?
Whether it will bind the new owner of the land
What must the dominant owner have to enforce an easement (to sue)?
The benefit of the easement
What happens to the benefit when the dominant land changes hands?
The benefit passes with the transfer of the land
Is part of it
Does it matter whether the easement is legal or equitable?
No! The benefit will pass with the dominant land
Where will the benefit of an easement appear on the official copy?
Under the property register of the dominant land if the burden of the easement has been registered against the servient land
Must the benefit of an easement appear on the property register for the easement to pass?
No; this is not necessary - the benefit will always pass with the transfer of the land
Why will express legal easements be automatically enforceable against servient owner on both registered and unregistered land?
Express legal easement cannot be created without registration
- Registered land = because it must be substantively registered in order to be a legal easement
- Unregistered land = because it will be an interest overriding the first registration of the servient land and will become noted on the charges register of the newly registered servient land (i.e. ‘binds the world’)
How will an implied legal easement be enforceable against servient owner on registered land?
Will be an overriding interest provided that:
- Easement is within actual knowledge of new owner; or
- It is obvious on a reasonably careful inspection of the servient land; or
- It has been exercised with a year before the transfer of the servient land
How will an implied legal easement be enforceable against servient owner on unregistered land?
The same way as an express legal easement over unregistered land - as overriding interest on first registration of the land
Will an express equitable easement be enforceable against the grantor and new servient owner on registered land?
- For grantor = will always be enforceable
- For new servient owner = must be protected
How is an express equitable easement protected and what is the effect of (not doing) this?
- By entering a notice in the charges register of the servient land
- Makes easement binding on a new owner of servient land (if not done = easement not binding on purchaser for valuable consideration)
When will a volunteer - someone who is gifted/inherits the land - be bound?
Always - whether interest protected or not
So how is 1. an express legal easement and 2. an express equitable easement enforceable against a new owner of burdened land?
- Should be registered
- Should be noted against title
How will an express equitable easement be enforceable against the grantor and new servient owner on unregistered land?
Class D(iii) Land Charge must be entered in the Land Charges Register against the name of the grantor rather than land itself - makes easement binding on new owner of servient land as this constitutes actual notice of existence of easement
If not done = easement not binding on purchaser for money/money’s worth
But volunteer always bound
How is an implied equitable easement protected whether registered or unregisterd land?
The same as for express equitable easements (notice on the charges register)
But unlikely that someone with such a benefit would ever consider the need to protect their interest in some way - illogical to expect someone to protect interest formally when the interest itself arose completely without formality
What remedies are available when enforcing easements?
- Mandatory injunction to remove obstruction
- Prohibitory injunction to prevent interference with enjoyment of easement
- Damages in lieu of injunction or in addition to it
