Easements Flashcards
What is an easement
A right for one landowner to make use of another parcel of land, for the benefit of their OWN land
Eg right of way
What is a profit?
A right to go onto someone else’s land and remove something that natural exists
(Fishing, hunting, minerals)
Are easements capable of being legal?
They are capable of being legal if they meet the requirements of s 1(2)(a) LPA
The right must be granted for either:
An estate in fee simple absolute, or
Term of years absolute
Easement created for UNCERTAIN duration is NOT legal.
What are the formalities to create a legal easement?
Deed, s 1 LPMPA.
However, can be created without formality of deed
If the agreement for an easement is entered into which complies with s 2 of LPMPA, and creates a CONTRACT for an easement, enforceable in equity.
Who is the servient
Land over which easement is exercised - the burdened land
What is the dominant?
The land that ENJOS the right, the benefited land.
What are the 4 characteristics that must exist for an easement to be present?
Must be dominant and servient tenement
Easement must accommodate dominant tenement
D and S must NOT be owned by same people
Easement must be payable of forming subject matter of a grant
What 4 main points emerge from the 4th criteria of an easement, which states that the easement must be capable for forming the subject matter of the grant?
Must be capable of reasonably exact definition
Must not involve ay expenditure by servient
Must not be so extensive as to amount to a CLAIM to joint possession
Law is cautious for negative easement.
Is there a general right to light?
No. An easement of light can ONLy exist where it is sufficiently definite and light is enjoyed via a PARTICULAR aperture.
What are examples of positive easements?
Where the benefit of easement is enjoyed by occupants of dominant land.
Eg, right of way, right of drainage, right to erect a sign.
What are negative easements that are recognised in law?
Right of light, right of air, right of support.
How can an easement be created?
Excess grant/reservation
Implied Necessity
Implied by common intention
Rule in Wheeldon v Burrows
section 62 LPA
Prescription
How can an easement be made by express grant?
Where servient owner executes a deed granting the dominant owner an easement over land owned by servient tenant.
Made knowingly and deliberately.
How can an easement be implied by necessity
Eg land locked land
Where land has no means fo access.
Necessity. Unless alternative means fo access etc.
How can an easement be implied by common intention?
Where land is conveyed for a purpose known to the grantor, any easement over land retained by the grantor which is essential in order for that purpose to be carried out.
Common purpose known to the parties. The right is NEEDED for the common purpose to be fulfilled.
How can an easement be made through wheeldon v burrows?
This is when a quasi-easement is converted into an easement.
This occurs when a land owner sells part of their land.
What is a quasi easement?
This is a right exercised by the landowner, which will then PASS to the buyer, subject to certain conditions being satisfied.
What are the 4 conditions that must be satisfied for the wheeldon v burrows to pass?
The existence of the quasi easement prior to the sale
The right must be continuous and apparent
Right must be necessary to the reasonable enjoyment of land sold,
Right must be in use at TIME of sale
When will wheeldon v burrows be shown in the facts?
If the land was in common ownership and the owner exercised quasi-easement,s and then the landlord then SOLD PART of their land.
How can an easement be made through s 62 of LPA?
Conveyance is deemed to pass not JUST the building, but al easement rights and advantages.
Operates to pass automatically to the buyer all existing rights, without necessary formal words in conveyance.
What are the 4 conditions for s 62 to apply to easements?
Must be a conveyance (mortgage or lease) - NOT sale
There must be some diversity of occupation of the 2 parts of land at the time of the grant (this does NOT apply to light or where the rights were continuous ad apparent)
There must be an existing rivulets at the date of the conveyance
Right must be capable of being an easement or profit.
What to look for int eh facts to determine if an easement has been made through s 62 of LPA
If there is an existing licence/permission and a SUBSEQEUNT conveyance.
There must be diversity of occupation.
Eg- if X owns an annex, and leased the annex to Y, an eaesment was introduced during this time. Then, a new written lease was subsequently entered into, which deos NOT mention this easement. Y can claim they have an easement.
How can an easement be made through prescription?
Where dominant can show use of right for 20 years, Court will uphold the right, a legal eaesment is created.
3 types:
Common law.
Doctrine of lost modern grant
Prescription act 1832
What are the 2 requirements for prescription of an easement
Must be continuous
And be exercised as of right (withotu force, without secrecy, without permission)
