easements Flashcards
A landlord owned the freehold of a property comprising of a house and outbuilding. Ten years ago, they rented out the outbuilding to a carpenter who used the outbuilding to store their wood supplies. The landlord continued to live in the house. Shortly after entering into the lease, the landlord gave the carpenter permission to use a track across the garden of the house as a shortcut to access the main road as it was more convenient.
Two years ago, when the lease was coming to an end, the landlord agreed to sell the freehold of the outbuilding to the carpenter. The landlord has now sold the house to a buyer. The buyer has told the carpenter that they can no longer use the track as the buyer intends to erect a fence between the house and the outbuilding.
Does the carpenter have any legal right to use the track?
Option a: No, because they have not been using the right long enough for the courts to recognise that an easement has been created.
Option b: No, because there was no written agreement between the landlord and the carpenter so they cannot enforce the right against the buyer.
Option c: Yes, because the rule in Wheeldon v Burrows will apply.
Option d: Yes, because under statute an implied legal easement has arisen.
Option e: Yes, because without the right the carpenter cannot reasonably enjoy the use of their land.
Option D is correct. The operation of s. 62 LPA 1925 means that a licence will be converted into an easement where the occupier of land (here the carpenter) has been permitted to undertake some activity on the land owned by another (here the landlord) and the owner of the land then conveys the property to the person claiming the benefit of the right. Provided (as here), the right is capable of being an easement, the process of conveyance converts the permissive use into a legal easement which is binding on the successor to the title.
Option A is not the best answer. Whilst it is true that an easement will not have been created through prescription (as the carpenter cannot show use of the right for 20 years), this is not the only method through which an easement can be created.
Option B is wrong. Section 62 does not require that the licence to exercise a shortcut over the land had to be in writing prior to the sale of the outbuilding.
Option C is wrong. The rule in Wheeldon v Burrows applies to convert ‘quasi-easements’ into easements when a landowner sells part of their land. Ordinarily, the land must be in common ownership and occupation prior to the sale of part. In this case, there was diversity of occupation (with the carpenter occupying the outbuilding and the landlord occupying the house).
Option E is wrong. Outside the rule in Wheeldon v Burrows (see above), easements will generally only be created out of necessity rather than merely to secure reasonable enjoyment. The circumstances in which the law is willing to imply the grant of an easement of necessity are extremely limited and will be defeated if there is an alternative means of access. There is nothing in the facts to suggest that the shortcut was the only means of access to the outbuilding – the facts suggest that the shortcut was a matter of convenience rather than necessity.
A man has owned and occupied his freehold house for five years. The house was built by the previous owner 15 years ago and includes a conservatory at the back. The previous owner used the conservatory as a dining room and the man has continued that use. Last week, the man’s neighbours began building work on an extension to his property. The neighbours’ extension, when complete, will substantially reduce the light enjoyed by the conservatory.
In the paperwork for the man’s purchase of the house, there is a letter written by the neighbours in which they indicate that they were happy for the previous owner to build the conservatory and for it to receive light from over their property. The man has not yet sought the advice of a solicitor or taken any other steps to claim or enforce any rights he might have. The neighbours’ property is also freehold and they have owned and occupied their property for thirty years.
Can the man successfully claim an easement of light by prescription?
Single correct
Option a: No, because the neighbours gave their written consent for the conservatory to enjoy the light over their property.
Option b: No, because the man has only owned the house for five years.
Option c: No, because the man has not commenced court proceedings to claim the easement.
Option d: Yes, because the man will be able to show that he has an easement arising under the common law doctrine of lost modern grant.
Option e: Yes, because there is an irrebuttable presumption that where a right has been enjoyed for 20 years, it has been used since 1189.
Option A is the correct answer. Although the man will be able to show that the easement has been used continuously for twenty years (aggregating both his and the previous owner’s periods of use), the written consent to the enjoyment of light given by the neighbours will preclude a successful claim under both the common law doctrine of lost modern grant and under s3 of the Prescription Act 1832. There will be no potential claim under the common law based on use since the year 1189 – see below under the explanation for Option E.
Option B is wrong because at least 20 years continuous use needs to be established for a prescriptive easement. It does not need to be at least 20 years continuous use by the claimant. The man can aggregate his period of use with the previous owner’s period of use to reach that threshold.
Option C is wrong because an application to court is only required to establish easements under the Prescription Act 1832. Common law prescriptive easements and easements under the doctrine of lost modern grant come into existence on the satisfaction of the relevant requirements and these requirements do not require an application to court. The availability of these two types of prescriptive easements on the facts of this question is discussed below.
Option D is wrong because a successful claim under the doctrine of lost modern grant requires the satisfactions of the common law conditions. The first of those conditions is that the use of the easement is ‘as of right’. For this to be the case, the use must be without force, secrecy and permission. The written consent from the neighbour means that there has been a permission to enjoy the right and so it is wrong to say that there would be an easement arising here under the doctrine of lost modern grant.
Option E is wrong because the presumption of continued use since the year 1189 which arises on 20 years continuous use is not irrebuttable. It can be rebutted by evidence showing that the use could only have begun after 1189. This would be the case here as the facts provide that the house was only built 20 years ago so a common law prescriptive easement would not have arisen here.
Last year, a client bought a registered freehold cottage, without consulting a solicitor. The seller had built the cottage 20 years ago and occupied it from then until completion of the sale. The seller also retained some land between the cottage and the main road. The transfer deed to the client made no reference to a right to use the drains serving the cottage which run under the seller’s retained land and which connect to the sewer under the main road. Manhole covers on the client’s land indicate the presence of the drains. The seller has now sold the retained land and the new owner is disputing the client’s right to use the drains.
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Which of the following statements best explains how the client may claim an easement of drainage in these circumstances?
Single correct
Option a: As there was diversity of occupation at the time of the transfer to the client, the client may claim an implied easement under section 62 of the Law of Property Act 1925.
Option b: The client may claim an implied easement of necessity, as the cottage cannot be used without a right of drainage.
Option c: The client may claim an implied easement under the rule in Wheeldon v Burrows.
Option d: The client may claim a prescriptive easement at common law.
Option e: The client may claim a prescriptive easement under the doctrine of lost modern grant.
Option C is correct because the rule in Wheeldon v Burrows will imply an easement on a sale of part where there is a continuous and apparent quasi-easement which is necessary for the reasonable enjoyment of the dominant tenement and which is in use at the time of the sale of part of the dominant tenement. All of these elements are present on the sale to the client.
Option A is wrong as there was no diversity of occupation at the time of the transfer to the client. The cottage was owned and occupied by the seller. In any event, diversity of occupation is only needed to create an easement under s62 LPA where there is a licence or privilege in favour of the dominant land, which then becomes an easement on completion of the sale of that dominant land. (Note that an easement may have been created under s62 LPA 1925 in the circumstances in this question as there was a continuous and apparent quasi easement in use at the time of the sale for the benefit of the land being sold – see P&S Platt Ltd v Crouch and Wood v Waddington). It is, however, the reference to there being diversity of occupation at the time of the transfer that makes this option wrong).
Option B is wrong because an easement of drainage is not a strict necessity here. It is possible to use the cottage without the easement of drainage by installing a septic tank or cesspit.
Option D is wrong because a common law prescriptive easement is based on a presumption of continuous use since 1189 where the easement has been used continuously for 20 years. Although the presumption is raised on the facts, it is rebuttable here because the cottage was only built 20 years ago. It can therefore be confirmed that use of the easement did not run all the way back to 1189.
Option E is wrong as the period of the seller’s use is not relevant here when deciding if there is a prescriptive easement. The client would need to use the drains for 20 years before such an easement could be considered.
