Easements

Question 1

When are easements capable of being legal?

Answer 1

Granted for either:

1. An estate in fee simple absolute in possession (freehold)

OR

2. A term of years absolute (leasehold)

Question 2

How must an express legal easement be created?

Answer 2

By deed

Question 3

How is an equitable easement created?

Answer 3

If any agreement for an easement is entered into which complies with contract requirements, this creates a contract for an easement enforceable in equity

Question 4

What are the 4 required characteristics of an easement?

Answer 4

1. Must be a dominant and servient tenement
2. Easement must accommodate the dominant tenement
3. Dominant and servient tenements must not be both owned and occupied by the same person
4. Easement must be capable of exact definition, not involve expenditure by servient owner, and generally must be positive

Question 5

When can an easement be negative?

Answer 5

Easement to light, air and support

Question 6

What is an express grant of an easement?

Answer 6

Where the servient owner executes a deed granting the dominant owner an easement over land owned by the servient owner

Question 7

What is an express reservation of an easement?

Answer 7

Where seller retains right over land they are selling - land retained becomes dominant land, and land sold becomes servient

Question 8

When would an easement implied by necessity arise?

Answer 8

Arise on sale of a land-locked parcel of land

Applies to grants and reservations

Question 9

What should you look for when identifying if there is an easement implied by necessity?

Answer 9

The land has no means of access other than the right claimed

Question 10

When would an easement implied by common intention arise?

Answer 10

Where land is conveyed for a purpose, 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

Applies to grants and reservations

Question 11

What should you look for when identifying if there is an easement implied by common intention?

Answer 11

Common purpose known to the parties
Right claimed is needed in order for the common purpose to be fulfilled

Question 12

When would a Wheeldon v Burrow easement arise?

Answer 12

Converts quasi-easements which existed when the landowner owned all the land, into full easements when part of the land is sold

Question 13

Under what conditions will the quasi-easement convert to an easement under Wheeldon v Burrows?

Answer 13

1. Existed prior to sale
2. Right continuous and apparent
3. Necessary to the reasonably enjoyment of the land sold, and
4. In use at time of sale

Question 14

What should you look for when identifying if there is a Wheeldon v Burrows easement?

Answer 14

Land was in common ownership and owner exercised quasi-easements over their own land
Land owner then sold part of the land

Question 15

What are s 62 easements?

Answer 15

Pre-existing licence at time of sale which is converted into an easement on the sale of the freehold

Question 16

What are the conditions for a s 62 easement?

Answer 16

1. Must be a conveyance
2. Diversity of occupation of the two parts of land at the time of grant (UNLESS right is continuous and apparent)
3. Existing privilege at date of conveyance
4. Right must be capable of being an easement (4 essential characteristics)

Question 17

What should you look for when identifying if there is a s 62 easement?

Answer 17

An existing licence/permission and a subsequent conveyance

There must be diversity of occupation (but not if the right is continuous and apparent)

Question 18

What is prescription?

Answer 18

Where the dominant owner can show the use of a right as an easement for 20 years - creates a legal easement

Must have been used without permission, force or secrecy

Question 19

What are the 3 types of prescription?

Answer 19

1. At common law
2. Doctrine of lost modern grant
3. Prescription Act 1832