Easements Flashcards
When is an easement capable of being a legal interest?
Duration is equivalent to one of the two legal estates
What is an easement?
Proprietary right to use land belonging to someone else
What are positive and negative easements?
Positive – allows holder to use servient land in a particular way
Negative – right enjoyed from the holder’s land
What are grants and reservations?
Grant: Landowner sells/leases part of land and gives buyer/tenant easement over retained land.
Reservation: Landowner sells/leases part and retains right over that land
How may easements arise?
- express
- implied
- prescription
What type of easement is an easement that has arisen by prescription?
Legal easement
What are the requirements for prescription?
- exercised reasonably regularly
- Used without force
- Used without secrecy
- Used without permission
- Uninterrupted use for 20 year period
What does interruption mean in the context of prescription?
No use for 1 year or more
Can a tenant obtain a prescriptive easement?
No must be between two freeholders
How do you determine whether a right is an easement or just a licence?
- Ellenborough park test
- No disqualifying factors
- Acquired as an easement
What is the Ellenborough park test?
- Must be dominant and servient tenement
- Right must accommodate the dominant tenement
- Must be diversity of ownership
- Right must ‘lie in grant’
What does ‘the right must lie in grant’ mean?
- Granted by a capable grantor to a capable grantee
- Capable of reasonably exact description
- Judicially recognisable
What are the disqualifying factors for an easement?
- no exclusive possession
- no additional expenditure
- no permission
What is the key principle for exclusive possession and how should it be applied?
Ouster principle
If servient owner able to anything with land except interfere with rights, likely not disqulaified
What are the ways in which a right can be acquired as an easement?
- Complies with statutory formalities for express grant/reservation
- Recognised method of implied acquisition
- Prescription
If an easement is not forever or a set period of time, what can it only be?
Equitable interest
What are the formalities for an express legal easement?
- created by deed
- clear on face intended to be deed
- validly executed
- delivered
Where servient land registered - substantive registration
What are the formalities for an express equitable easement?
- in writing
- signed by grantor
Is substantive registration needed for an equitable easement?
No
What is the consequence if an easement has an equivolent term to the freehold/leasehold estate but was not correctly created?
Estate contract i.e. enforceable contract to create a legal easement
What are the formalities for a failed legal easement to be an estate contract?
- in writing
- contain all expressly agreed terms
- signed by both
Where an easement is implied into a lease, when will it end?
when lease ends
Where an easement is implied into a transfer deed, when will it end?
Lasts along with freehold
What type of easement is created when it is implied into a transfer deed or lease?
Implied legal easement
What type of easement is created when it is implied into a contract or equitable lease?
Implied equitable easement
What are the methods of implied acquisition of an easement?
- necessity
- common intention
- rule in Wheeldon v Burrows
- s62 LPA
When will an easement be implied out of necessity?
rights of way where land would otherwise be landlocked
When may an implied easement out of necessity fail?
- alternate access route
- right of drainage/sewerage/electricity
- possible for third party to grant
What are the requirements for an easement to be implied due to the parties common intention?
- Land sold/leased for particular purpose
- Purpose known to both parties
- Easement essential to achieve common purpose
What are the requirements for the rule in Wheeldon v Burrows?
- Grant
- Quasi easement
- Continuous and apparent
- Necessary for reasonable use
- In use by common owner at date fo transfer/lease
Why was there held to be no easement under Wheeldon v Burrows in Wheeler v Saunders?
There was another equally convenient access route
What are the requirements for s62 LPA?
- Grant
- Prior diversity of occupation (or no diversity but continuous and apparent)
- Informal permission or licence
- Conveyance
Will the benefit of an easement pass when the dominant land changes hands?
Yes
Is an express legal easement enforceable for registered land and why?
Yes always enforceable as it must be substantively registered
How is an express legal easement enforceable for unregistered land?
Overriding interest on first registration
How is an implied legal easement enforceable for registered land?
Will be an overriding interest provided that
* Within actual knowledge of new owner or
* Obvious on reasonably careful inspection or
* Exercised within a year before transfer
How is an implied legal easement enforceable for unregistered land?
Overriding interest on first registration
How is an express/implied equitable easement enforceable for registered land?
- must be protected by notice on charges register to bind purchaser for valuable consideration
- otherwise will still bind gifted/inherited
How is an express/implied equitable easement enforceable for unregistered land?
- must be protected by D(iii) Land Charge to bind purchaser for valuable consideration
- otherwise will still bind gifted/inherited
What are the remedies for easements?
- Prohibitory injunction to prevent interference with enjoyment
- Damages in lieu of injunction or in addition
- Mandatory injunction to remove obstruction
