Easements

Question 1

Easement vs. license

Answer 1

Easement:
- permanent
- benefit and burden does continue once land is sold
- allows you to enter another person’s land as of right

License:
- temporary
- benefit and burden doesn’t continue once land is sold
- allows you to enter another person’s land with permission

Question 2

4 essentials of an easement (Re Ellenborough Park)

Answer 2

1. Dominant and servient tenement
2. Easement must accommodate the dominant tenement
3. Dominant and servient tenements mustn’t be owned and occupied by the same person
4. Easement must be capable of forming the subject matter of the grant

Question 3

Easement must be capable of forming the subject matter of the grant

Answer 3

Right must be one that is capable of being granted by deed:
- must be someone capable of giving/receiving easement
- nature of the right mustn’t be too wide/vague, e.g. you can’t have a right to airflow or light generally
- right must be more than one of mere recreation and amusement, e.g. right to use a park
- right must not be inconsistent with the ownership of the servient land, must not exclude the owner from their land or from enjoying it

Question 4

Negative easements

Answer 4

Not welcomed by the courts because they restrict the servient owner from developing his property.

Question 5

Express grant or reservation

Answer 5

An agreement made knowingly and deliberately by deed.

Question 6

Can you create an oral easement?

Answer 6

No, this would create a license.

Question 7

Easements implied by necessity

Answer 7

Arises on the sale of a land-locked parcel of land, e.g. a right of way, without which, the land has no means of access to the public highway.

Question 8

Easements implied by common intention

Answer 8

Where land is conveyed for a particular purpose, and the only way for that purpose to be carried out is by implying an easement, e.g. where a lease obligates the tenant to not emit nasty smells from his restaurant, the only way to comply with this obligation is to build a ventilation duct.

Question 9

What is a quasi-easement?

Answer 9

Where an easement exists without diversity of occupation, ie. a landowner exercises a right over his own land.

Question 10

Wheeldon v Burrows - turns quasi-easements into easements

Answer 10

Quasi-easement must exist before sale + be used at the time of sale.

Continuous and apparent - a feature that would obviously be seen on inspection, that is habitually enjoyed by the landowner, e.g. drains, paths.

Necessary to the reasonable enjoyment of the land sold - where an alternative right of way exists but it is dangerous, a claim for another right of way will succeed.

Question 11

s 62 LPA 1925

Answer 11

On a conveyance of land, unless nothing to the contrary is stated in the deed, the conveyance is deemed to automatically pass to the buyer all existing rights, without the need for formal words in the conveyance.

There must be:
- an existing licence/permission
- subsequent conveyance
- diversity of occupation

Doesn’t apply to easements of light or continuous and apparent rights.

Question 12

Prescription at common law

Answer 12

The grant of an easement is presumed if it’s been enjoyed continuously as of right since 1189, ie. for 20 years.