Easements Flashcards
Essential characteristics of easements
There must be a dominant and servient tenement
Easement must benefit the dominant land, not just the owner/occupier personally
Dominant and servient land must be in separate ownership
Right must be capable of being an easement and described sufficiently to identify it
What are the two requirements for a legal easement?
- Must last for a fixed term or forever
- Must be created by deed
What are the four ways an easement can be created?
- Express grant or reservation
- Implied grant or reservation
- Prescription (claimed by freeholder if used for 20+ years without force or secrecy)
- Statute
What 3 Ps can defeat the right to claim an easement?
Permission (asked by dominant land owner)
Exclusive possession (servient land owner must be left with reasonable use)
Payment (or expenditure by servient land owner)
Implied by necessity
Very strictly construed, landlocked land only
Implied by common intention
Dominant land must be sold / leased for a specific purpose
Purpose must be known to both parties
Easement claimed must be essential to achieve the common purpose (e.g. restaurant and ventilation)
Implied under s.62 LPA (grant only)
Normal application: transfers benefit of any easement to new owner when dominant land is sold
Informal right/permission (‘continuous and apparent’) gets ‘upgraded’ in a conveyance (lease / transfer deed)
Implied by the rule in Wheeldon v Burrows (grant only)
Quasi-easements enjoyed during the period of unity of possession are upgraded to a full easement when the land is sold (and thus dominant/servient land created)
Is the right enforceable against a third party?
Legal easement (deed and registration): yes
Implied legal easement: overriding interest if obvious on reasonable inspection and used in the past 12 months
Equitable easement: binding on donee, but not buyer (unless protected by entry on the Charges Register)
