Easements Flashcards
A freehold owner granted a 25-year lease of their property (‘the Property’). Five years after the lease was created, the freehold owner gave informal permission for the tenant to erect a sign upon the freehold owner’s adjoining land advertising the tenant’s business. Last month, when the lease came to an end, the tenant purchased the freehold to the Property. The transfer made no mention of the sign.
Which of the following answers best describes how an easement in relation to the sign has been created?
A-The right is not capable of existing as an easement as it does not accommodate the dominant tenement.
B-The easement was created by prescription as it has been used for over 20 years.
C-The easement was created by s 62 LPA 1925 as an existing privilege upon the transfer of the freehold to the tenant.
D-This is an easement of necessity which allows the tenant to erect a sign.
E-The easement was expressly created on the transfer of the freehold to the tenant.
The correct option is C.
The easement in relation to the sign was created by implication by s 62 LPA 1925. There was an existing privilege (the freehold owner’s informal permission to erect the sign), there was diversity of occupation (the freehold owner owning the servient land and the tenant occupying the Property) and there was a conveyance (the transfer of the freehold to the tenant). The effect of the conveyance is to create a legal easement in relation to the sign.
There is no mention of the easement in the transfer of the Property. Option E is, therefore, wrong.
Although the easement has been exercised for over 20 years, most of this period was whilst the Property was let. A prescriptive right can only be created as between two freehold owners. Option B is, therefore, wrong.
It is hard to consider any circumstances in which an easement relating to a sign could be an easement of necessity. Option D is, therefore, wrong.
Option A is correct in relation to the legal principle but does not answer the question asked and is, therefore, not the best answer.
Quick Q:
In 1989, a woman purchased a freehold property consisting of a farm house and outbuildings including a large separate barn (‘the Barn’). The Barn has its own access to the main road, but the woman has always used a track (‘the Track’) running past the main house to access the Barn. She prefers the Track as it avoids a dangerous right-hand turn. Last year, the woman sold the Barn to a man. The transfer included an express right over the main point of access but made no mention of the Track.
Which of the following answers best describes how an easement over the Track has been created?
The easement is created by Wheeldon v Burrows as a quasi-easement in use at the time of the sale.
The correct option is D.
This cannot be an easement of necessity as there is an alternative means of access and therefore, the Barn is not landlocked. Option C is, therefore, wrong.
There is no indication of a common purpose or intention in the facts, so option E is wrong.
The transfer to the man contained an express grant only in relation to the main point of access, not the Track. Option B is, therefore, wrong.
This cannot be an easement by prescription as, although the use started in 1989, it could not become an easement until there was a separate dominant and servient owner. This only happened when the Barn was sold last year. Option A is, therefore, wrong.
The woman exercised a quasi-easement over her own land. On the transfer to the man, this became a legal easement on the basis that the easement was clearly continuous and apparent, necessary for the reasonable enjoyment of the land (to avoid the busy junction) and in use at the time of the sale. Option D is, therefore, correct.
A man has driven over his neighbour’s driveway, with his neighbour’s permission, to gain access to the public highway for the last 25 years. The title to the neighbour’s land does not contain reference to the man’s use of the driveway. The neighbour recently died and his son has told the man that he can no longer use the driveway.
Does the man have the right to continue to use the driveway?
A-Yes, because the man has a right to use the driveway which he has acquired by prescription.
selected
B-Yes, because the man has a right to use a driveway because the neighbour granted an express easement.
C-Yes, because the man will have the right to use the driveway as an implied easement of necessity has arisen.
D-No, because the burden of easements does not run with the land and so the neighbour’s son is not bound by the right.
E-No, because the man does not have an express easement to use the driveway and has not acquired a right to use it by prescription.
The correct option is E. The man’s title does not contain a right of way and so he has no express legal easement. A prescriptive right of use arises by a use as off right for more than 20 years. The man has used the driveway for more than 20 years but not as of right, which means without permission. Here the facts make clear that the man has permission. Therefore no prescriptive easement arose and option A is wrong.
Option B is wrong because he does not have an express easement. An express easement requires a deed of which there is no evidence here. Even if there was a deed, in registered land it would have to be completed by registration as it’s a registrable disposition. There is no entry on the register of the neighbour’s land. [NB if complied with the requirements of an equitable lease (signed writing, containing all the agreed terms), it would still need to be on the register as an IARE].
Option C is wrong as an implied easement arises on a sale of part of which there is no evidence on the facts. In any event, it is highly unlikely that the use of driveway is strictly necessary.
Option D is wrong. As established, the right is not an easement. Also, the reason is wrong – the burden of easements does run (express easements if registered and implied and prescriptive easements as overriding easements).
Quick Q:
The owner of a shop and accompanying parking space (grantor) has granted to the owner of a nearby shop (grantee) the exclusive right to park a car in the parking space at all times. The right was granted by deed. The grantee’s shop is on the same parade but is separated from that of the grantor by another shop.
Is the right capable of being a valid easement?
No, because the right leaves the grantor with no reasonable enjoyment of the parking space.
Option E is the best answer, because the right is granted over the whole of the parking space at all times. Therefore, it leaves no reasonable use of the land for the grantor (Batchelor v Marlow).
Option A is wrong because a right must still satisfy the requirements of Re Ellenborough Park to be an easement, even if created correctly.
Option B is wrong because it is the effect of the easement that will be looked at. The effect is to leave the grantor with no reasonable use of the land.
Option C is wrong because the dominant and servient tenements do not need to be immediately adjacent in order for the dominant tenement to benefit.
Option D is wrong because a right to park can be recognised as an easement, but it is always a question of degree as to whether the right will leave the servient owner with no reasonable use of their land.
Quick Q:
A solicitor is acting on behalf of a client who is purchasing a property which comprises a house and a garden (“Property”). The current owner of the Property has informed the client that the Property has the benefit of an easement over the neighbour’s driveway.
The client’s solicitor has investigated the position and discovered that the neighbour granted a right of way by deed over their driveway to the current owner of the Property for 10 years.
Which of the following best describes the nature of the easement?
The easement is capable of being legal because it lasts for 10 years.
Option C is the best answer because easements are capable of being legal provided that they meet the requirements in section 1(2)(a) Law of Property Act 1925. In order to be capable of being legal, an easement must be granted for either a term equivalent to a fee simple absolute in possession (i.e. forever) or a term of years absolute (i.e. a fixed duration). This easement is expressed to last for a period of 10 years which is a fixed duration. It therefore satisfies the requirements of section 1(2)(a) LPA 1925 and is capable of being legal. Whether or not it is legal depends on whether or not the correct formalities for creation have been complied with.
Option A is wrong because not all easements are capable of being legal. In order to be capable of being legal, an easement must satisfy the requirements of section 1(2)(a) LPA 1925 (see above). If it does not satisfy those requirements, then it will only ever be capable of being equitable.
Option B is wrong. In order to actually be legal (rather than just capable of being legal), an express easement should be made by deed. However, this is not the only way in which a legal easement can be created.
Option D is wrong because easements do not have to last forever in order to be capable of being legal. They can also last for a fixed duration of time as per the requirements of section 1(2)(a) LPA 1925.
Option E is wrong because the easement is made for 10 years which is a fixed duration of time. This satisfies the requirements of section 1(2)(a) LPA 1925 and it is therefore capable of being legal. If the easement was made for an uncertain duration, then it would not satisfy the requirements in section 1(2)(a) LPA 1925 and would not be capable of being legal – it would only ever be capable of being equitable. However, that is not the case here.
Quick Q:
Two weeks ago, a client purchased a registered freehold property and has now been registered as the proprietor. The client’s neighbour is claiming an easement of drainage over the client’s property. The neighbour, who has owned their land for twenty years, has recently started to build a house on their land, which was previously undeveloped. The neighbour has a document, called a ‘Deed of Easement’ and validly executed as a deed six months ago, in which the previous owner of the client’s property granted the neighbour the right to connect to and forever use the drains which serve the client’s property. There is no mention of any easement on the register of title.
Which of the following best describes the neighbour’s claim to a binding easement of drainage over the client’s property?
The neighbour does not have a binding easement because the easement was not registered before the client became the registered proprietor.
Option A is correct. The previous owner of the client’s property did attempt to create an express easement in favour of the neighbour. Express easements granted for a period equivalent to a fee simple absolute in possession (i.e. forever) and created by deed are registrable dispositions (see s27(2)(d) LRA 2002). As such and in order to bind a buyer of the servient tenement, the easement should have been registered before the buyer became the registered owner (s29 LRA 2002). The facts indicate that this has not happened as the client is now the registered proprietor and there is no easement referred to on the register.
Option B is wrong because, as indicated above, expressly created easements created forever and by deed need to be registered in order to be enforceable (and also fully legal). Certain legal easements can be overriding interests but this only applies to implied easements and easements by prescription.
Option C is wrong because implied easements are only created on a sale of part. The facts indicate that the grant of the easement was an independent transaction and not connected to any sale of part (the document used was called a ‘Deed of Easement’ rather than a transfer deed). In any event, an easement will only be implied on a sale of part on the basis of necessity where the dominant tenement cannot be used at all without the easement (it is a very strict test). That is not the case here – the neighbour’s land was previously undeveloped and a separate septic tank can be used for drainage rather than connecting to another property’s drains. In addition, implied easements can be overriding but only if they satisfy one of the conditions set out in Schedule 3 Paragraph 3 LRA 2002 so it is not correct to refer to them as “automatically binding”.
Option D is wrong. An easement of common intention is one of the categories of implied easement but, as indicated above, implied easements are only created on a sale of part. Here, the purported grant of the easement here was an independent transaction and not connected to a sale of part. In addition, and also as above, implied easements must satisfy one of the conditions set out in Schedule 3 Paragraph 3 LRA 2002 to be overriding.
Option E is wrong. Although the neighbour has owned their land for twenty years and twenty years is the minimum period on which a claim to a prescriptive easement can be based, this period must relate to the use of the easement. The neighbour has only just started building the house and their land was previously undeveloped so there has not been twenty years use of the easement at this point.
Quick Q:
A man has a pedestrian and vehicular right of way over a privately owned farm track leading from his house to the public highway. Several other local residents also have permission to use the track to access their properties from the public highway. The deeds creating the rights of way are silent as to obligations to repair the track on the part of either the man, the farmer who is the freehold owner of the track, the other local residents or anyone. The track does not form part of the public highway. The man has noticed that, through normal use by those entitled to use it, the track has developed a number of potholes and has generally fallen into disrepair such that it is now dangerous in parts to walk on and is damaging to vehicles using it. The man seeks advice as to who is obliged to maintain or repair the track.
Which of the following statements best describes who must maintain and repair the track?
B- Nobody.
Option B is correct. Once a right of way exists, the servient owner (the owner of the land over which the easement exists) is under no obligation to maintain or repair it. Similarly, the dominant owner (the owner of the land who can exercise the rights attaching to the easement) has no obligation to maintain or repair the right of way.
The liability to maintain or to repair the right of way once constructed primarily depends upon the terms of the grant or reservation. In the absence of express stipulation or special circumstances, neither the servient owner nor the dominant owner is liable to maintain or repair it.
In this situation, there is no express stipulation nor any special circumstances and so neither the freehold owner as servient owner, nor the man/the other local residents as dominant owners are liable or obliged to repair the track.
Accordingly, option B is correct and the other options are necessarily wrong.
The freehold owner of registered land grants, by deed, a right of way for a period of 20 years over a path on the freehold owner’s land, for the benefit of neighbouring land. The path serves as a shortcut from the neighbouring land to the village green. The easement is registered against the freeholder owner’s title at the Land Registry and noted on the neighbour’s registered title.
Which of the following best describes why the easement is a legal easement?
A-Because it is an easement of common intention.
B-Because it is created by deed.
C-Because it is a registrable disposition and takes effect at law once registered.
D-Because it is for a fixed duration.
E-Because it is an overriding interest.
The easement is capable of being legal because it meets the requirements of s1(2)(a) LPA 1925, in that it is equivalent to a term of years absolute. The formalities for it to be legal are that it is created by deed, but if those formalities are met, which they are here, it will only take effect at law if the easement is registered as a registrable disposition at Land Registry under s27 LRA 2002. Therefore, C is the best answer. B and D are correct but not the best answer. Failure to register will mean that the easement can take effect as an equitable easement only.
An easement of common intention may be implied on a sale of part, whereas this is an expressly granted easement. Therefore A is wrong. Further, only an implied legal easement may be an overriding interest and so option E is also wrong.
