Easements

Question 1

What is the difference between Legal and equitable easements?

Answer 1

Legal- for a term certain

Equitable- for a term uncertain

Question 2

What is the re ellenborough park elements?

Answer 2

1) there must be a dominant and servient tenement;
2) an easement must “accommodate” the dominant tenant (the use of the land in question must be “connected” to the use of the dominant land - merely adding to the property
3) Dominant landowner and servient landowners must be different people;
4) The right can be granted. (The person granting the easement must be legally capable of doing so).
5) The nature and extent of the rights must be clear.

Question 3

What are the three P’s that can defeat an easement

Answer 3

1) No Permission

2) No exclusive possession

3) No Payment

Question 4

What are the different modes of acquisition of an easement?

Answer 4

1) has it been expressly acquired? (formal requirements- in a deed, or does it comply with s 2 LP (MP) A 1989)(or no certain term- created an equitable easement

2) If not, do circumstances exist which mean it could have been acquired impliedly- always implied into a document, eg in a lease/transfer deed/contract.

Question 5

What is necessity for a grant on an easement?

Answer 5

Necessity is where the land would otherwise be incapable of being used if it were not for the easement- only used as a right of way where the land is otherwise landlocked

Question 6

What is common intention for a grant of an easement

Answer 6

This is where the easement is necessary for the dominant landowner to make use of the land for a definite and particular purpose which was agreed when the land was sold or leased

Question 7

What is Wheeldon v Burrows?

Answer 7

This is a method of creating an easement where the land is divided for the first time by transfer or lease. The new transferred land becomes dominant and had a right that was exercised by the servient owner which was exercisable and enhances the land in some way. Must be used regularly and be discoverable

Question 8

What is s 62 LPA 1925?

Answer 8

This upgrades formal permissions into formal easement eg in a lease

Question 9

What is gaining an easement by prescription?

Answer 9

This is by claiming use over land by having consistent use over 20 years, without force, secrecy or permission

Question 10

Is the right enforceable?

Answer 10

It depends on whether the land was expressly or implied.

Express: Legal easement (registrable disposition under s 27 LRA 2002).
Equitable easement (notice on the charges register or will not bind a purchaser for value)

Implied: Legal easement (overriding interest- para 3, sch 3 LRA 2002)
Equitable easement (notice on the charges register or will not bind a purchaser for value)