Easements

Question 1

What is an easement?

Answer 1

An interest in land owned by a party who is not the legal estate owner

• Can be positive (eg. right of way) or negative (eg. right to stop owner blocking light)
• Capable of being legal so long as (1) created for duration equivalent to freehold/leasehold term, (2) acquired by deed, (3) registered if arising through express acquisition of registered piece of servient land

Question 2

What are the 3 requirements for a lease to be legal?

Answer 2

Created for duration equivalent to a freehold or leasehold term

Acquired by deed, which is valid (clear on face + attested + delivered)

Registered (where arises through express acquisition of registered piece of (servient) land)

Question 3

What are the 5 circumstances in which an equitable easement will arise?

Answer 3

(a) Grantor has equitable estate only

(b) Easement created for uncertain duration (must be in writing + signed by grantor)

(c) Parties have failed to fulfil requirements for creation of legal easement, but requirements of valid contract under s2 LP(MP)A have been met

(d) Parties have deliberately entered into a contract to grant a legal easement in the future - must comply with s2 LP(MP)A + be capable of specific performance

(e) Easement is implied into acquisition of equitable estate

Must be protected by s32 Notice if land registered or D(iii) / C(iv) land charge if unregistered

Question 4

What are the 4 essential characteristics of easements? (must be present for a right to exist as an easement)

Answer 4

1. There must be a dominant & servient tenement
2. The right must accomodate the dominant tenement
3. The dominant & servient tenements must be owned or occupied by different persons
4. The right claimed must be capable of forming the subject matter of the grant

Question 5

What is a dominant tenement & a servient tenement?

Answer 5

The dominant tenement is the land which BENEFITS from the exercise of the right

The servient tenement is one which is BURDENED by the exercise of the right

Question 6

Re Ellenborough Park - 2. The right must accomodate the dominant tenement

What does this mean?

Answer 6

The right must benefit the dominant tenement

→ The right must be connected to the normal use & enjoyment of the dominant tenement
- Don’t need to be joined, but dominant & servient tenements should be close enough to establish a connection

→ The right must benefit the land itself, not just the owner
- Does the right positively affect the value of the dominant tenement?
- Would any owner of the land see it as a benefit?

Nb. If a business, ask if the business is a necessary incident of the normal use of the land or completely unconnected to the use of the land

Question 7

What 3 questions are helpful to ask when establishing if the right accomodates the dominant tenement? (Re Ellenborough Park - 2)

Answer 7

Is the right connected to the normal use and enjoyment of the land?

Would any owner of the land see it as a benefit?

Does the right positively affect the value of the dominant tenement?

Question 8

Re Ellenborough Park - 3. The dominant & servient tenements must be owned or occupied by different persons

Will this fail in a landlord & tenant situation?

Answer 8

No - ‘diversity of ownership’ is satisfied in a landlord & tenant situation

(The land is occupied by different people)

Question 9

Re Ellenborough Park - 3. The dominant & servient tenements must be owned or occupied by different persons

What happens if the rights are exercised by the sole owner of two separate tenements?

Answer 9

Could be a ‘quasi easement’ (rights which have all the other characteristics of an easement)

These can be converted to easements on a sale of part of the land

Question 10

Re Ellenborough Park - 4. The right claimed must be capable of forming the subject matter of the grant

What are the 5 main points of this criteria?

Answer 10

(a) There must be a capable grantor & grantee
* Must each have an estate in land & separate legal personalities
* Cannot be a vague fluctuating body (eg. inhabitants of a village)

(b) The easement must be capable of reasonably exact definition
* eg. ‘Right to view’ fails because too vague

(c) The easement must not involve any expenditure by the servient owner

(d) The easement must not be so extensive as to amount to a claim to joint possession of the servient tenement
* Can’t exclude the grantor completely from posession
* Judged temporally (amount of time taken) & spatially (amount of space used)

(e) The right should be within the general nature of the rights traditionally recognised as easements
* Eg. positive: right of way, drainage, erect sign,
* The only negative easements are light (in relation to a defined aperture), air, support
* The courts are very reluctant to recognise new negative easements

Question 11

Who will not be a capable grantor or grantee of an easement?

Answer 11

Someone without an estate in land

A vague fluctuating body (eg. ‘inhabitants of a village’)

Question 12

Can the right to park a car in one of several spaces be an easement?

Answer 12

Yes, so long as it doesn’t interview with the servient tenement owner’s reasonable use of the land

If the right is to park the car in the same area always, ask whether the servient tenement owner is being deprived of their full possession & control
(Have failed where right to park for dominant part of the day in the same spot amounted to exclusive possession)

Question 13

Are the courts likely to recognise a new kind of negative easement?

Answer 13

No

The only negative easements are light (in relation to defined aperture), air, support

Even if satisfies all four requirements in Re Ellenborough Park, courts are reluctant to recognise new negative easements (eg. right to TV signal rejected)

Question 14

What are some of the rights which have been held capable of being easements?

Answer 14

Right of way

Right of light (through a defined aperture)

Right to water (in a defined channel)

Right to air (in a defined channel)

Rights to support

Rights of drainage & other pipelines

Right to use sporting & leisure facilities)

Right to use a lift as part of other easements (but not just to use a lift)

Right to pollute a river

Question 15

What are the three (six) methods for creating an easement?

Answer 15

1. Express grant / reservation
2. Implied:
   I. Implied by necessity
   II. Implied by common intention
   III. The rule in Wheeldon v Burrows
   IV. Section 62 LPA 1925
3. Prescription

Question 16

How can an easement be created expressly?

Answer 16

Express grant: A expressly grants B an easement over A’s land

Express reservation: C sells/leases part of their land to D & expressly reserves the benefit of a right for their own land

A deed must be used for the easement to be legal (will be equitable if contract complies with s2 LP(MP)A)

Question 17

When will an easement be implied by necessity?

Answer 17

When the existence of the easement is essential for any use at all of the dominant tenement

Only easement which can be implied by necessity is a right of way to a piece of land otherwise landlocked
- No easement implied by necessity if there’s another means of access (however inconvenient)

(Available for grant & reservation)

Question 18

If the land has no means of access other than the right claimed, what method of creation for the easement?

Answer 18

Implied by necessity

Question 19

When will an easement be implied by common intention?

Answer 19

When the land has been sold/leased to another for a particular purpose & that purpose cannot be fulfilled without the easement

• General intention as to how the property should be used is not enough - parties must intend for the property to be used in some definite & particular manner

(Available for grant & reservation)

Question 20

If there is a common purpose known to the parties and the right claimed is needed for that common purpose to be fulfilled, what is the method of creation of the easement?

Answer 20

Implied by common intention

Question 21

How can the grant of an easement be implied?

Answer 21

Implied by necessity

Implied by common intention

Wheeldon v Burrows

s62 LPA 1925

Question 22

How can the reservation of an easement be implied?

Answer 22

Implied by necessity

Implied by common intention

only

Question 23

What is the rule in Wheeldon v Burrows for the creation of easements?

Answer 23

Any quasi-easements exercised by the landowner will pass to the buyer, so long as 4 conditions are satisfied:

a. Existence of a quasi-easement prior to the sale

b. The right must be continuous & apparent

• ie. used regularly, some visible evidence that it is used (eg. worn track)

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

Quasi-easements have all the characteristics of an easement, except that the dominant & servient tenements are owned by the same party

No requirement for a conveyance - valid (s2 LP(MP)A) contract will suffice

(Available for grant only)

Question 24

If the land was in common ownership & the owner exercised quasi-easements over their own land before selling part of the land, what method of creation for the easement?

Answer 24

Wheeldon v Burrows

Question 25

What are the 4 conditions that must be satisfied for a quasi-easement to pass to a buyer (Wheeldon v Burrows)?

Answer 25

a. The existence of a quasi-easement prior to the sale

b. The right must be continuous & apparent

• ie. permanence/regularity & some visible evidence of this use (eg. worn track)

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 26

How is an easement created under s62 LPA 1925?

Answer 26

A conveyance will elevate what was a licence at the time of sale into an easement, so long as 4 conditions are satisfied

(1) There is a conveyance as defined in s205(1)(ii) LPA 25

• Must be a written document that creates or transfers legal estate (eg. mortgage, lease deed - but not contract for sale)

(2) There must be some diversity of occupation of the two parts of the grant
UNLESS:

• Easement of light
• Right is continuous & apparent

(3) There is an existing privilege at the date of conveyance (s62 is not concerned with future rights)

(4) The right is capable of being an easement or a profit (must comply with Re Ellenborough Park)

(Available for grant only)

Question 27

If there is an existing licence or permission and a subsequent conveyance, what method of creation may be used for the easement?

Answer 27

s62 LPA 1925

There must also be diversity of occupation (unless the right is continuous & apparent)

Question 28

If the land has been divided before informal licence was given, under what method will the licence become an easement when the leased land is re-let or sold?

Answer 28

s62 LPA 1925

Question 29

If the land is divided for the first time by the lease or sale of part, and the right is continuous & apparent, what method of creation will be used for the easement?

Answer 29

Wheeldon v Burrows

or

S62 LPA 1925 (wider than Wheeldon because don’t need to show right reasonably necessary)

Question 30

How is an easement created by prescription?

Answer 30

Where the right has been exercised for 20 years or more, an easement will arise so long as:

i. Right has been exercised by or on behalf of a freehold owner over another freehold owner

ii. It has been exercised as of right (ie. without force, secrecy, permission)

iii. It has been exercised continuously

→ 3 methods of prescription:

1. Prescription at Common Law

• Presumes user who satisfies the 3 conditions has been using the right since time immemorial (or 1189)
• Easy to be rebut by showing that at some time since 1189 the right wasn’t / couldn’t be exercised, or that the two pieces of land were owned by the same person

2. Prescription under the doctrine of lost modern grant

• Presumed that there was a grant of right at some time since 1189 but that the deed of grant has been lost

3. Prescription Act 1832

• Claimant must start a court action for an order that the easement be granted
• Will not work if there is an interruption for more than a year in the 20 years which immediately precedes the court action

Question 31

If a right has been exercised for 20 years (or for 30 years if it is a profit) or more between two distinct parcels of freehold land, how will an easement be created?

Answer 31

Prescription

Question 32

What are the 3 conditions that must be satisfied for any of the methods of Prescription to be possible for the creation of an easement?

Answer 32

i. Right exercised by one freehold owner over another freehold owner

ii. Exercised as of right (ie. without force, secrecy, permission)

iii. Exercised continuously

Only applies where right exercised for 20 years or more!

Question 33

What are the 3 methods of creating an easement by Prescription?

Answer 33

1. Prescription at common law

• Easy to rebut by showing that right not exercised / couldn’t have been exercised / dom & serv tenement owned by same person at some point since 1189

2. Prescription under doctrine of Lost Modern Grant

• Presumed if enjoyed continuously as of right for 20 years or more there was a grant of right but it has been lost

3. Prescription Act 1832

• No interruptions of a year or more in the 20 year period preceding the date of the court action