Easements Flashcards
What is an easement?
right to do something upon the land belonging to another;
What is the the 4 part criteria set out in Re Ellenborough Park?
1) There must be a dominant and servient tenement;
2) The right must accommodate the dominant tenement;
3) The dominant and servient tenement must have diversity of occupation and ownership;
4) The right must be capable of forming the subject matter of a grant.
What does dominant and servient tenement mean?
a) this means that there much be two parcels of land;
b) the dominant tenement has the benefit of the land;
c) the servient tenement has the burden of the land;
What does the right must accommodate the dominant tenement mean?
a) Accommodate means that it must benefit the land rather than the right being personal in nature;
b) the right must be connected with the normal enjoyment of the property/land.
What does “the dominant and servient tenement must have diversity of occupation and ownership” mean?
a) The two plots of land must be owned by two different people;
b) One cannot have an easement against oneself;
The right forming the subject matter of a grant has a number of sub-rules that must be complied with before the right can qualify as an easement.
What are they?
a. the right must be capable of being granted by deed, even if it has not been granted by deed.
c. The right must not benefit the dominant owner without activity on his part.
d. The right must not require the servient owner to actively do something such as spending money, apart from maintain a fence.
e. The right must not be expressed in terms which are too wide or vague.
The right must not be expressed in terms which are too wide or vague.
The court has developed 2 alternative tests for determining whether a right satisfies this sub rule. What are they?
the ‘reasonable use test’ and the ‘possession and control test’.
What case determined the reasonable use test?
The ‘reasonable use’ test was adopted in Batcher v Marlow.
The right granted in relation to the area which the right is exercisable left the servient owner without reasonable use of his land.
The right was held to be too extensive as it left the owner without reasonable use of his land.
What case determined the Possession and Control test?
iii. The reasonable use test was criticised by the House of Lords in Moncrieff v Jamieson. The ‘Possession and Control’ test was introduced. This test dictates that an easement can only exist if the owner of the servient land retains possession and control of his land. The right cannot amount to exclusive possession.
Easements can arise in a variety of different circumstances. The most common types of easements are?
- Express grant or reservation.
- Implied grant or reservation.
- Easements by prescription.
- By Statue: most likely for public right of way e.g under Highways Act 1980.
- Rule in Wheeldon v Burrow
NOTE: If not created by any of those methods, it could be an equitable easement. If neither of those, we may be dealing with a licence.
What is an express grant or reservation?
The expressed agreement may be added to formal transfer documents upon conveyance or could arise independently of this process.
Where the servient land is registered, an express easement must be registered at the Land Registry against the title to the servient land.
When looking at implied easements, there are four methods generally identified.
What are they?
a. Necessity:
b. Courts consider common intention of parties.
What does necessity mean?
Where a piece of land is left landlocked after a sale of part and could not otherwise be accessed.
To create an easement by necessity, it must be demonstrated that the land cannot be enjoyed without the benefit of the easement.
This is a very strict test, and the need must be absolute. Thus, if land would otherwise be completely inaccessible without a right of way, i.e. ‘landlocked’ then that easement may be granted.
However, if there is an alternative means of access, this will prevent the easement being implied, even if the alternative is extremely inconvenient
What is the rule in the rule in Wheeldon v Burrows?
a. An easement will be implied by the rule in Wheeldon V Burrows where an owner of a plot sells or leases some of their land to an owner or tenant (TP1)
b. The conveyance will impliedly grant all the continuous and apparent easements over the retained land necessary for the reasonable enjoyment of the land sold.
c. Prior to the sale/lease, these rights were enjoyed by the seller as ‘quasi-easements’.
d. The right must have been enjoyed as a quasi-easement by the seller or the landlord before the land was divided.
e. The quasi-easement must have been ‘continuous and apparent’.
f. The right otherwise must be reserved.
What is the operation of s62 of the Law of Property Act 1925?
a. Section 62, unless excluded, typically operates on a conveyance of part i.e. where the seller sells some land but retains other adjoining land (over which the rights in question are enjoyed).
b. If s.62 is not excluded on a conveyance of part, rights accommodating the land sold that are enjoyed over the retained land at the time of the conveyance will be treated as included in the conveyance even though they are not mentioned in terms in the conveyance.
c. Because s.62 is not subject to any requirement that the easement be necessary for the reasonable enjoyment of the land, it is of wide application.
