Easements Flashcards
what is an easement?
Right annex of a land to prevent…
a propriety right which one person has over the land of another. it can be either legal [created by deed and are fixed term or forever] or it can be equitable. easements can also be implied.
what case set down the criteria for easements?
Re Ellenborough Park 1955- in this case there was land around a park being sold as housing, people in this housing had to contribute and pay for the upkeeing of the park. later the park was sold.. court held that this was an easement:
1. there has to be a dominant and servient tenement
2. must accommodate dominant
3. must be different people
4. easement must be capable of forming the subject matter of a grant
explain the 2nd characteristic using cases
Must accommodate the dominant tenement- benefit the land
Hill v Tupper 1863; it benefitted the owner but..
Moody v Steggles 1879 benefitted the land
there also must be proximity in the case of Bailey v Stephens 1862; Kent and London was too far.
Explain the 3rd characteristic using cases
Dominant and Servient tenement must be two different people;
Roe v Seddon 1888; landlord and tenant relationship counted as they were different
Broman v Griffith 1930; different occupation so relationship works
explain the 4th characteristic using cases
easement must be capable of forming the subject matter of a grant
a. there must be a capable grantor or grantee
b. must be substantially definitive for example in the case of Hunter v Canary Wharf 1997 cellphone towers was not tangible enough
c. must be on the list of easements [recognised category] Lawrence v Fen Tigers 2014; silence did not amount to an easement
d. servient tenement should not pay any money towards the easement Crow v Wood 1971; maintenance of the fencing was expected
e. no exclusive possession; Grisby v Mellville 1972; there was exclusive possession of the cellar
if expressed, what type of easements can there be?
legal or equitable
how do you create and equitable easement?
Expressly in writing, by deed but not fixed term (forever) and will go in the register as a notice
how do you create a legal easement?
expressly and by deed for either fixed term or forever
how can legal easements be binding on 3rd parties?
as a notice on the register or as an overriding interest
how can equitable easement be binding?
must be entered as a notice of the chargers section of the register
what happens if an easement is not created by a deed or in writing?
it is most likely implied
what are the ways in which an easement can be implied
- necessity
- common intention
- prescription
- rule in Wheeldon v Burrows 1979
- s.62 LPA 1925
what are implied easements by necessity or common interest?
necessity means absolute need to have an easement and common interest means both parties agree to the easement
the case Wong v Beaumont 1965 in which there was a necessity for easement for ventilation for his restaurant to function and there was a common interest as both parties agreed to having an easement as otherwise it violated health and safety regulations
what is easement by prescription?
If someone has had the right for 20 years they can get an easement of prescription but after 40 it is more secure
- no secrecy, no force, no permission
through what statute can an implied easement be created ?
s.62 LPA 1925
sovmonts 1979 said there is a requirement of diversity of occupation but
Platt v Crouch 2003 changed this to only 1 owner and 1 occupier needed.
