easements

Question 1

What is an easement?

Answer 1

An easement is a right to benefit from a piece of land owned by someone else/third party. Often a neighbouring land

Question 2

4 characteristics of an easement

Answer 2

There is a servient and dominant tenement
Must be no common ownership between the two
Land must be in close proximity, land that is far away from the dominant owner cannot be used as an easement
Must be capable of forming the subject matter of a grant - Clear explanation of what the right is so it can be grante

Question 3

How can an easement be granted?

Answer 3

Through an express grant - Deed, statute, will (rarely)
Implied grant - Where an easement is created without being written, arises through implications surrounded by that land. Implied by necessity - Where the easement is necessary to enjoy the piece of land. Implication of prior use - If the previous owner has been using the easement for many years without objection, parties conduct suggests easement.

Through a prescription grant -
Where the owner has been using an easement for 20-40 years without issue
Must be using the land without breaks
As of right, using the land without permission from the owner

Question 4

How does Wheeldom v Burrows create a rule for a grant?

Answer 4

If certain rights were being enjoyed by a previous owner, the rights can continue to exist after the sale

Question 5

Legal v Equittable easement

Answer 5

Granted to a freehoold estate(ownership) for a specific period of time
Created through deeds, statutes and wills
Recorded on legal forms like deeds and wills
If land is registered, legal easement must also be registered

Equittable -
Not as strong as legal easement
Arise through agreements or circumstances rather than through legal forms
Can only bind purchases if they have knowledge of it existing

Question 6

What is the difference between a legal and equittable easement?

Answer 6

• The ability to bind a third party
  Legal easement can bind purchases whether they knew of its existence or not, whereas an equittable one cant.

Question 7

Excessive use of an easement.

What would an express grant imply?

Answer 7

• Increase in the use of an easement does not mean the owner can object.
• If expressed through a grant, look at the wording of the grant and what was stated. if vague, focus on circumstances at the time of the grant. If no limitation mentioned, then grant isnt restricted.

Prescription/Implied grant - If dominant land undergoes radical change leading to a burden, the easement can be suspended.
Case example (McAdams homes LTD v Robinson)

Question 8

What does McAdams Homes LTD v Robinson imply?

Answer 8

That if dominant land undergoes radical change, the easement can be suspended because that wasnt the current circumstance at the time it was excersised.

Question 9

The general rule

Answer 9

Easement cannot be used to access land that is in close proximity to the dominant land.

Exceptions include - When the land neighbouring the dominant land is also apart of the enjoyment of the dominant land.

Question 10

What case affirms the exception

Answer 10

National trust v White. Masey v Boulden

Question 11

Remedies for the interference of an easement

Answer 11

• Decleration from the court used to confirm the existence of an easement
  -Damages given to the dominant tenement