Easements Flashcards
What is an easement and a profit?
An easement is a right for one landowner to make use of another parcel of land for the benefit of their own land. For example, a right of way.
Can be negative or positive. Positive allows and negative restricts.
A profit (or profit a prendre) is a right to go on to somebody else’s land and remove from the land something which exists naturally. For example, a right to:
* catch and take fish
* graze animals
* extract minerals such as gravel or chalk
* hunt or shoot
Essential characteristics of an easement (Re Ellenborough Park [1956])
- There must be a dominant and a servient tenement.
- The easement must accommodate the dominant tenement.
- The dominant and servient tenements must not be both owned and occupied by the same person.
- The easement must be capable of forming the subject matter of the grant.
Essential characteristics of an easement - the need for a dominant and a servient tenement
An easement can only exist if it is attached to (or appurtenant to) the dominant land.
An easement cannot exist ‘in gross’. This is where only a servient tenement is identified, without any dominant land.
Any attempt to create an easement without an identifiable dominant tenement will create a licence only. However, a profit can exist in gross and only a servient tenement need be identified when creating a profit.
Essential characteristics of an easement - must accommodate the dominant tenement
The right must be connected with the normal enjoyment of the dominant tenement. Question of fact.
The dominant and servient tenements do not need to join each other, but they should be close enough to establish a connection between the two.
The right must benefit the land itself and not just the owner in their personal capacity. The following guidelines can assist:
* Does the right improve the marketability of the land; and/ or
* Would any owner of the land see it as a benefit?
Essential characteristics of an easement - dominant and servient tenements must not be both owned and occupied by the same person
Have to be owned by separate people.
If don’t have diversity of occupation/ownership then its a quasi-easement.
Essential characteristics of an easement - easement must be capable of forming the subject matter of the grant
As a legal interest, an easement must be capable of being granted by deed and, therefore, must be capable of precise definition.
Four main points:
(a) An easement must be capable of reasonably exact definition.
(b) An easement must not involve any expenditure by the servient owner -
No positive obligation on the owner to do anything.
There is no implied obligation on the landowner to maintain the right of way. However, the owner of the dominant tenement has the right to carry out repair works.
(c) An easement must not be so extensive as to amount to a claim to joint possession of the servient tenement -
This is judged both:
* temporally – the amount of time taken; and
* spatially – the amount of space used.
(d) The law is very cautious when it comes to a claim for a new type of negative easement. -
The only negative easements recognised at law are those of light, air and support.
No right to light, can only exist in relation to a defined aperture, as an easement.
Methods to create an easement - Express grant/ reservation
Grant = Where the servient owner executes a deed granting the dominant owner an easement over land owned by the servient owner.
Made knowingly and deliberately.
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.
Methods to create an easement - Implied by necessity
Applies to grants and reservations.
An easement of necessity would arise on the sale of a land- locked parcel of land.
A claim would be defeated if there was an alternative means of access, even if that alternative access was dangerous.
Methods to create an easement - Implied by common intention
Applies to grants and reservations.
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.
All about common intention of parties.
Methods to create an easement - The rule in Wheeldon v Burrows
Applies to grants only.
Occurs when a land owner sells part of their land.
Any quasi- easements exercised by the landowner will pass to the buyer subject to certain conditions being satisfied:
(a) the existence of a quasi- easement prior to the sale;
(b) the right must be continuous and apparent;
(c) the right must be necessary to the reasonable enjoyment of the land sold; and
(d) the right must be in use at the time of the sale.
Methods to create an easement - Section 62 LPA 1925
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 etc.
Methods to create an easement - prescription
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. A legal easement is created. There are three types of prescription:
(a) at common law
(b) the doctrine of lost modern grant
(c) the Prescription Act 1832.
Whichever method is used, need to show right has been exercised by or on behalf of owner against owner:
1. continuously; and
(user can be by a number of freehold owners in succession and may be intermittent in nature)
2. as of right
(without force, secrecy or permission)
Methods to create an easement - Prescription at common law
If it has been enjoyed continuously as of right since time immemorial/1189. It is presumed that a user for 20 years or more is proof of use since 1189.
Can be rebutted by showing that at some time since 1189:
* the right was not exercised
* the right could not have been exercised
* the dominant and servient tenement were vested in the same owner (unity of seisin).
Methods to create an easement - Prescription under the doctrine of Lost Modern Grant
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.
This would be the situation where the dominant and servient tenements have been in common ownership since 1189 or where there is a gap in use exceeding one year.
Methods to create an easement - Prescription under the Prescription Act 1832
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 (s 2 Prescription Act 1832).
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.
Short interruptions to the user are permitted. Any interruption in use lasting a year or more stops time running.
