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Land Law > Easements > Flashcards

Easements Flashcards

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1
Q

What is an easement?

A

An easement is a proprietary right to use land which belongs to somebody else.

The use is more limited than an exclusive right to occupy or use.

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2
Q

When is an easement capable of being a legal interest in land?

A

When its duration is equivalent to either a leasehold duration or a freehold’s duration (ie forever)

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3
Q

When will an easement only be equitable?

A

When it is not granted for the duration equivalent to a freehold or leasehold estate

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4
Q

When will an easement be positive?

A

When it allows the holder to use the servient land in a particular way eg

  • a right of way
  • right of drainage
  • right to park
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5
Q

When will an easement be negative?

A

When they do not involve entering the neighbouring land as the right conferred can be enjoyed from the holder’s land

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6
Q

What rights should not be confused with easements even though they may have similar characteristics?

A
  • quasi-easements
  • public rights
  • licences
  • profits a prendre
  • restrictive covenants
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7
Q

What are quasi-easements?

A

Where landowners use things on their own land that may become easements if the land were ever to be divided such as an access route to a house

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8
Q

What are profits a prendre?

A

A right to take things from the land, such as produce, animals, fish, or minerals

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9
Q

What are the two main ways an easement can be created?

A
  • by grant - happens where landowner sells or leases part of their land and gives to the buyer/tenant an easement over the land which they have retained
  • reservation - exists where a landowner sells or leases part of their land to a buyer/tenant and retains a right over the land sold or leased
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10
Q

Is a reservation to be construed strictly or widely? And why?

A

Strictly because they are in a position to reserve exactly what is required and are assumed to have done so. Any attempt by seller/landlord to extend the right will fail.

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11
Q

When will an easement be created by prescription?

A
  • there has been regular use for at least 20 years
  • that use as been as a right:

(i) without force

(ii) without secrecy

(iii) without permission of landowner

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12
Q

What would constitute force so defeat creation of easement by prescription?

A

Ignoring signs or protests from servient land owner

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13
Q

What would constitute secrecy so defeat creation of easement by prescription?

A

If the use of the purported easement could not reasonably have been discovered.

Right must be used openly

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14
Q

What three things must be considered when assessing whether a right is an easement?

A
  • the right must fulfil the capability requirements in re Ellenborough Park
  • the right must not be prevented from being an easement by a disqualifying factor
  • the right must have been acquired as an easement, either expressly, impliedly or by prescription
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15
Q

What four factors must be present for a right to be capable of being an easement per Re Ellenborough Park?

A
  • there must be a dominant and servient tenement
  • the right must accommodate the dominant tenement
  • there must be diversity of ownership
  • the right must lie in grant
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16
Q

What is meant by the requirement that there must be a dominant and servient tenement re the test in Re Ellenborough Park?

A

There must be two identifiable pieces on land - one which benefits from the exercise of the right and one which is burdened by it.

The right must not be exercised by the holder independently of the land otherwise it is licence or personal right.

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17
Q

What is meant by the right must accommodate the dominant tenement re the test in Re Ellenborough Park?

A

The right must have some beneficial impact on the dominant tenement

Useful questions to ask are:

  • does the right benefit any owner of the land?
  • does it cease to be of use once the dominant owner has parted with the land?
  • does the right make the dominant land a better or more convenient property?
  • does the right add value or amenity to the dominant land?
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18
Q

What is meant by the right must lie in grant re the test in Re Ellenborough Park?

A
  • The person who grants the right must have the power to do so, they must be over 18 and own the legal estate
  • the grantee must also be capable eg not possible to grant in favour of large group such as residents of a village
  • the nature and extent of the right must be clear enough to be enforced by the courts
  • the right should be of nature generally recognised by the courts
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19
Q

Can there ever be new types of easements ie ones not previously recognised by the court?

A

Yes as long as not negative in nature.

Law open to developing by analogy

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20
Q

What happens if a right satisfies the test in re Ellenborough Park but there is a disqualifying factor?

A

Then not a right

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21
Q

What are the three disqualifying factors?

A
  • the exercise of the right must not amount to exclusive possession of the servient tenement
  • the exercise of the right by the dominant owner must not involve additional, unavoidable expenditure by the servient owner
  • the exercise of the right must not depend on permission being given by the servient owner
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22
Q

Why will exclusive possession by the dominant owner disqualify any potential right from being an easement?

A

The use by the dominant owner is too intense - easements are only meant to be limited rights

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23
Q

What is ouster principle test for determining if a right amounts to exclusive possession so therefore not an easement?

A

If the servient owner has been deprived of all reasonable use then cannot be an easement

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24
Q

What is the possession and control test for determining if a right amounts to exclusive possession so therefore not an easement?

A

Ask whether the servient owner still retains ultimate possession and control of the servient land, subject to reasonable exercise of the right

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25
Q

What is the no additional expenditure disqualifying factor?

A

If the servient owner is required to spend extra money, the right is disqualified from being an easement as a positive obligation is inconsistent with the concept of an easement

The servient owner cannot be required to carry out repairs but they must allow the dominant owner onto the servient land to carry out any repairs dominant owner’s expense

26
Q

What is the no permission disqualifying factor?

A

Dominant owner must exercise the benefit as a right - if they only exercise it with permission then they are not using it as a right so it cannot be an easement

27
Q

What formalities are required for creating legal easements?

A
  • must be created by deed
  • must be signed by grantor and witnessed
  • must be delivered (ie dated)
  • if the servient land is registered then the easement must be substantively registered at the Land Registry
28
Q

On registration at the land registration where is the easement recorded?

A
  • benefit of easement is recorded on the Property Register of the dominant land’s title
  • burden is noted on the Charges Register of the servient land’s title
29
Q

What formalities are required for creating an express equitable easement?

A
  • must be in writing
  • signed by the grantor
  • no substantive registration is required
30
Q

What formalities are required for a failed legal easement to exist as an equitable easement?

A

Will exist as equitable easement if recognised estate contract

  • must be made in writing
  • must be signed by both parties
  • must include all expressly agreed term
  • no registration is required
31
Q

What four methods are there for implied acquisition of an easement?

A
  • necessity
  • common intention of the parties
  • the rule in Wheeldon v Burrows
  • LPA 1925
32
Q

What happens if an easement is obtained through implied acquisition?

A

That easement is implied into the document from which was omitted from - usually a transfer or a lease.

If implied into a lease, it will last for the duration of the lease.

If implied into a transfer deed, it will exist as long as the freehold does

33
Q

What status will implied easements have ie when will they be legal and when will they be equitable?

A

Implied easements take their status from the document they have been implied into

  • implied legal easements for transfer deed or a legal lease
  • implied equitable easements for contracts or equitable lease
34
Q

What is the test for an easement to be implied by necessity?

A

Possible to exist where easement impliedly granted or reserved.

Where it can be shown that its existence is essential in order that any use of the dominant tenement can be made - must be more than just adding enjoyment to dominant tenement

35
Q

In what situation will an easement be implied by necessity?

A

Where land is otherwise totally landlocked.

If there is another alternative route then will not be an easement implied by necessity

36
Q

How did Sweet v Summer expand the test for an easement to be implied by necessity?

A

Implied a right of way for vehicles even though right of way on foot already existed

37
Q

What is the test for an easement to be implied by common intention?

A

Where land has sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the easement sought

Parties must have a specific intention that the land is to be used for a particular purpose and easement claimed must achieve that specific purpose.

General intention how property should be used is not enough.

Easement may also be implied by common intention when it is necessary for enjoyment of some expressly granted easement

38
Q

Can common intention imply an easement where there is reservation rather than a grant?

A

Theoretically yes but high burden of proof to show that specific easement was mutually intended. Not enough to show seller or landlord has openly exercised the right prior to first transaction

Court place higher burden as person reserving right has total power to reserve what they need and want and will be assumed to have do so

39
Q

Is implied acquisition under Wheeldon v Burrows possible where an easement is being impliedly granted and impliedly reserved?

A

Possible where impliedly granted but not when being impliedly reserved

40
Q

What are the conditions for there to be a implied acquisition under the rules in Wheeldon v Burrows?

A

1) the right being claimed is implied in a grant to the claimant

2) the right must have been enjoyed as a quasi-easement by the seller or the landlord before the land was divided

3) the quasi-easement must have been continuous and apparent

4) the quasi-easement must be necessary for the reasonable enjoyment of the dominant land

5) the quasi-easement must be in use by the common owner of the land at the date of transfer or lease of the dominant land

41
Q

Under the rule in Wheeldon v Burrows, how is the continuous requirement met?

A

Satisfied if the right enjoyed some degree of permanence. Right must not have been transitory or intermittent

42
Q

Under the rule in Wheeldon v Burrows, how is the apparent requirement met?

A

There must be some clue as to the existence of the right from a careful inspection of the land

43
Q

Under the rule in Wheeldon v Burrows, how is the necessary for reasonable use of the land requirement met?

A

The right must enhance the land in some way. This will not be the case if there is an equally convenient alternative available.

44
Q

Under the rule in Wheeldon v Burrows, how is the use by the common owner at the date of transfer or lease requirement met?

A

By shown that right enjoyed in recent past and that it is expected to be enjoyed in near future

45
Q

How can parties avoid the operation of the rule in Wheeldon v Burrows?

A

By expressly excluding it from the relevant transfer, contract or lease

46
Q

When is the implied acquisition method under LPA 1925 s 62 available?

A

Available where someone is claiming to have granted an easement impliedly but not when someone is claiming to have impliedly reserved an easement.

Only implied into conveyance (deed) so not a contract.

47
Q

What is the effect of s 62 relating to implied acquisition?

A

Operates to upgrade informal rights into full legal easements

48
Q

What requirements are there for there to be an informal right to be upgraded to a full legal easement under s 62?

A

1) Right must be being claimed as a result of a grant to the claimant

2) there must have prior diversity of occupation of the dominant and servient land

3) an informal permission or licence must have been granted to the occupier of the dominant tenement to use the servient land in some way

4) there must have been conveyance (ie a transfer by deed or legal lease) of the dominant tenement

(the last three requirements are sequential)

49
Q

How can parties avoid the effect of s 62 and creation of easements?

A

They can expressly exclude it from deed

50
Q

In P and S Platt v Crouch, what further explanation in relation to s 62 did the the court lay down?

A

The requirement for prior diversity of occupation of the dominant and servient land is not necessary where the right is continuous and apparent ie exercised recently and regularly

51
Q

What must the dominant owner have to enforce an easement?

A

The dominant owner must have the benefit of the easement and thus the ability to sue.

This will always be the case with the dominant owner as a properly created easement will always mean they have the benefit and benefit will pass on any transfer of the land

52
Q

When will an express legal easement be enforceable against the servient owner with registered land?

A

Properly created express legal easement will always be enforceable against a new servient owner as it must be substantively registered in order to be created and so will therefore run with the land

53
Q

When will an express legal easement be enforceable against the servient owner with unregistered land?

A

Will bind the world

On first registration of the servient land any express legal easement will be an overriding interest and will become noted on the charges register of the newly registered servient land

54
Q

When will an implied legal easement be enforceably against the servient owner of registered land?

A

Will be enforceable as an overriding interest provided that:

  • the easement is within the actual knowledge of the new owner

OR

  • it is obvious on a reasonably careful inspection of the servient land

OR

  • it has been exercised within a year before the transfer of the servient land
55
Q

When will an implied legal easement be enforceably against the servient owner of unregistered land?

A

An implied legal easement is enforceable in the same way as an express legal easement over unregistered land ie under the principle ‘legal interest bind the world’ and as an overriding interest on first registration of the land

56
Q

When will an express equitable easement be enforceable against the owner of servient land which is registered?

A
  • always enforceable against the grantor
  • only enforceable against new servient owner if notice entered in the charges register of the servient land
57
Q

What is the effect of not entering a notice of express equitable easement on charges register of servient land which is registered?

A

The easement will not be binding on any purchaser for valuable for consideration.

Any volunteer/donee (ie gifted or inherited the land) will always be bound whether interest is protected or not

58
Q

When will an express equitable easement be enforceable against the owner of servient land which is unregistered?

A

Will be enforceable against original owner

Must be protected by registering class D (iii) Land Charge at Land Charges Register which makes it binding on all subsequent owners

59
Q

What is the effect of not protecting an express equitable easement by Land Charge against servient land which is unregistered?

A

Will only bind volunteers/donees not purchaser for money

60
Q

What is the process for protecting/enforceability of implied equitable easements and what is the difficulty of protecting them?

A

Process for protecting and enforceability is the exact same as express equitable easements but highly unlikely that it will be done as person who has benefit of the easement will not know they need to protect it

Highly vulnerable to being defeated by land being sold

61
Q

What are the remedies for enforcing easements?

A
  • prohibitory injunction to prevent interference with the enjoyment of the easement
  • damages in lieu of injunction or in addition to it
  • mandatory injunction to remove obstruction

Land Law (12 decks)

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