easements Flashcards
which of the following rights cannot be used as an easement
- the right of the owners of one house to use a neigbours kitche for the purposes of watching their clothes
- the right to use a swimming pool or tennis court on adjoining land
- the right of owners of one building to be protected from the weather of an adjoining building
- the right to use a shed for storing coal
- the right to cross neigbouring land to access a nearby road
to be protected from the weather of an adjoining building - this is a negative easmenet - court will not recognise new negative easements because of the restrictive impacts it will have on neigbouring land.
true or false - the decision in re ellenborough park deals with the requirements needed for a right to be an equitalble easement
false - deals with the requirements of an easement. the creation of the easemnet is not considered until these characteristics are satisfied.
for an easement to be granted by necessity which of the following must be proven
- it was always the undertsanding of both parties that the easement would be used
- the land is completely unusable without the easement
- there has been a continuous use of the easement for more than 20 years
- it is required for the reasonable enjoyment of the property
- it was verbally agreed betwee the two respective landowners
the land must be completely unusable without the easement
when a legal easement is created by express grant there must be:
- a verbal agreement
- a written agreement
- a deed
- use of the land for over 20 years
- common intention between the parties
a deed. an express grant is one that is expressly agreed between parties and there is evidence of that and clear words are used.
true or false - the rule in wheeldon v burrows deals with the crreation of easements by prescription.
false 0 deals with the creation of easements by implied grant - prescription will always relate to long term use of an easement with the minimum term being 20 years - indefeasible when 40 years - 20 years subject to conditions.
essential characteristics of an easement
- there must be a dominant and servient tenement
- an easment must accomadate the dominant tenement
- tenements owned by different people
- the right claimed must be capable of forming the subject matter of a grant
four ways an easement can be created
- expressly
- impliedly
- by prescription
- by statute
express grant or express reservation
- grant must be made by deed - clarity of the drafting is important to avoid disputes in the future.
common intention (implied )
- not strictly neccessary for the use of the land but which were commonly intended between the parties for that use of the land for one reason or other wasnt included in a deed.
implied grant
no express words but it is still an easement which can be read into the legal document
- necessity
- common intention
- wheeldon v burrows
- s62 LPA
wheeldon v burrows
only relevant when someone sells part of their land to someone else.
the transfer would impliedly contain all of the rights of enjoyment the original owner originally enjoyed.
grant of all quasi easements that had been exercised by the seller prior to the transfer.
requirements
- there is a quasi easement
- the right was in use immediately prior to the transfer of the land
- must be continuous and apparent - use is obvious
- the right is necessary for the reasonable enjoyment of the property.
grant of an easement under s62 lpa
upgrades a licence that has been granted by the owner of the land to the tenant, to an easement when the land is subsequently sold or the lease is renewed
- there must be a conveyance of land some form of deed of the legal estate
- the right claimed must be capable of being an easement
- the conveyance must not express a contrary intention between the parties
- there must be diversity of occupation - meaning the two perices of land must be in separate ownership.
- continuous and apparent. r
prescription
the creation of easements by prescription means that they can be acquired by the long use of the easement and the prescription act provides prescription for two different time periods
- 20 years - the easement has been enjoyed without interruption for 20 years and does not depend on one of the conditions set out below
- 40 years - if the easement has been enjoyed without interruption for 40 years then it will be deemed absolute and indefeasible even if the easement was based on an oral agreement.
20 years
- the user must be as of right
- without force no objectives
- open and honestt
- without permission - it must be freehold land.
- continuous
