Easements Flashcards
What is an easement?
Right of one landowner to make use of another’s land for the benefit of their land.
Can an easement be legal?
Yes, provided it complies with the necessary formalities. Otherwise, it is equitable.
How long must an easement last?
There is no set time for how long it can last.
However, it must be for a set period (e.g. 5 years) or be stated to last forever, there must be a certain timeframe.
If there is no certainty of time the easement cannot be legal - however, it can still be equitable.
What are the formalities for an express legal easement?
Must be created by a deed which:
- Is clear on the face of it that it’s a deed;
- has the signatures of both parties; and
- is witnessed by a third party.
What happens if an easement fails to be legal?
Provided that all the terms of the easement are written and signed by both parties in a document, it will be equitable.
What are the four essential characteristics of an easement?
(i) there must be a dominant and servient tenement;
(ii) the easement must accommodate the dominant tenement (i.e. not be personal);
(iii) the dominant and servient tenements must not be owned and occupied by the same person; and
(iv) the easement must be capable of forming the subject matter of a grant
What is required for an easement to be capable of forming the subject matter of a grant?
(a) must be capable of an exact definition;
(b) must not involve any expenditure from the servient owner;
(c) must not be so extensive so as to claim joint possession of the servient tenement;
(d) must not form a new negative easement.
What are the five ways an easement can be implied?
(i) necessity;
(ii) common intention;
(iii) S62;
(iv) Wheeldon v Burrows;
(v) Prescription
How can an easement be implied by necessity?
Often if the land cannot be used without the existence of the easement, e.g. a landlocked property that can only be accessed via a right of way.
How can an easement be implied by common intention?
Where land is conveyed for a purpose known to the grantor, any easement essential for the conduction of this purpose is implied.
What is the rule in Wheeldon v Burrows? (Grants only)
Converts ‘quasi-easements’ into easements.
Occurs when a landowner sells part of their land.
Any quasi-easement exercised by the landowner will pass to the buyer (subject to conditions).
What conditions must be satisfied for an easement to pass via Wheeldon v Burrows?
(a) the quasi-easement existed before sale;
(b) the right is continuous and apparent;
(c) right must be necessary for reasonable enjoyment of the land sold (not as strict as ‘necessity’) ; and
(d) the right must be in use at the time of the sale.
What is meant by a ‘quasi-easement’?
When a right satisfies all the characteristics of an easement but there is no diversity of occupation
What is S62?
On a conveyance of land, if not excluded, the conveyance passes all privileges and easement rights appertaining to the land.
What are the conditions for the operation of s62?
(i) There must be a conveyance;
(ii) there must be some diversity of occupation and/or the right is continuous and apparent;
(iii) there must be an existing privilege at the date of the conveyance;
(iv) right must be capable of being an easement.
