Easements

Question 1

What is an easement

Answer 1

A right for one landowner to make use of another parcel of land, for the benefit of their OWN land

Eg right of way

Question 2

What is a profit?

Answer 2

A right to go onto someone else’s land and remove something that natural exists

(Fishing, hunting, minerals)

Question 3

Are easements capable of being legal?

Answer 3

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.

Question 4

What are the formalities to create a legal easement?

Answer 4

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.

Question 5

Who is the servient

Answer 5

Land over which easement is exercised - the burdened land

Question 6

What is the dominant?

Answer 6

The land that ENJOS the right, the benefited land.

Question 7

What are the 4 characteristics that must exist for an easement to be present?

Answer 7

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

Question 8

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?

Answer 8

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.

Question 9

Is there a general right to light?

Answer 9

No. An easement of light can ONLy exist where it is sufficiently definite and light is enjoyed via a PARTICULAR aperture.

Question 10

What are examples of positive easements?

Answer 10

Where the benefit of easement is enjoyed by occupants of dominant land.

Eg, right of way, right of drainage, right to erect a sign.

Question 11

What are negative easements that are recognised in law?

Answer 11

Right of light, right of air, right of support.

Question 12

How can an easement be created?

Answer 12

Excess grant/reservation

Implied Necessity

Implied by common intention

Rule in Wheeldon v Burrows

section 62 LPA

Prescription

Question 13

How can an easement be made by express grant?

Answer 13

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

Made knowingly and deliberately.

Question 14

How can an easement be implied by necessity

Answer 14

Eg land locked land

Where land has no means fo access.

Necessity. Unless alternative means fo access etc.

Question 15

How can an easement be implied by common intention?

Answer 15

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.

Question 16

How can an easement be made through wheeldon v burrows?

Answer 16

This is when a quasi-easement is converted into an easement.

This occurs when a land owner sells part of their land.

Question 17

What is a quasi easement?

Answer 17

This is a right exercised by the landowner, which will then PASS to the buyer, subject to certain conditions being satisfied.

Question 18

What are the 4 conditions that must be satisfied for the wheeldon v burrows to pass?

Answer 18

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

Question 19

When will wheeldon v burrows be shown in the facts?

Answer 19

If the land was in common ownership and the owner exercised quasi-easement,s and then the landlord then SOLD PART of their land.

Question 20

How can an easement be made through s 62 of LPA?

Answer 20

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.

Question 21

What are the 4 conditions for s 62 to apply to easements?

Answer 21

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.

Question 22

What to look for int eh facts to determine if an easement has been made through s 62 of LPA

Answer 22

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.

Question 23

How can an easement be made through prescription?

Answer 23

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

Question 24

What are the 2 requirements for prescription of an easement

Answer 24

Must be continuous

And be exercised as of right (withotu force, without secrecy, without permission)

Question 25

What is prescription through common law for easements?

Answer 25

Grant of eaesment is PRESUMED if it has been enjoyed continuously as a right since time immemorial (presumed 20 years or more).

Question 26

Can the right of prescription at common law for easement be rebutted?

Answer 26

Yes, if it can be shown that any time during 20 years, the right was:

Not exercised

Could not have been exercised

dominant and servient tenement were vested in same owner.

Question 27

What is teh doctrine of lost modern grant?

Answer 27

Grant of eaesment is presumed if it has been enjoyed continuously as a right for 20 years or more, on the basis that there was a grant but it has been lost.

LAST RESOR.

Question 28

What is prescription under the prescription act

Answer 28

If the dominant owner can show user as a right for 20 years, then they will obtain a prescriptive easement even through the user clearly ommenced sometime after.

Claimant musts prove UNINTERRUPTED enjoyment for period of at leases 20 years, which immediately precede and which terminates in an action.

Short interruptions are permitted. Lasting a year or more, time stops running and would have to restart period.