Easements

Question 1

What is the dominant tenement?

Answer 1

The land which is benefitted by the easement.

Question 2

What is the servient tenement?

Answer 2

The land which is burdened by the easement is the servient tenement.

Servient land - think servant.

Question 3

Requirements for a valid legal easement:

Answer 3

For a certain term.
Must be created by deed.
Must be registered if made over registered land.

If term is uncertain/no valid deed/no registration- easement will only be equitable.

Question 4

Positive easement examples:

Answer 4

Right of way, right of drainage, right to park.

Question 5

Negative easement examples:

Answer 5

Right to light, right to air, right of support.

Rare.

Question 6

What is a quasi-easement?

Answer 6

A benefit which could be enjoyed as an easement should the different parts of the owner’s land ever be owned by separate people.

Question 7

Easement vs. restrictive covenant:

Answer 7

An easement confers a right over the servient land.

A restrictive covenant restricts what is done on the servient land.

Question 8

Requirements for an easement to arise by prescription or long use under the Prescription Act 1832:

Answer 8

An easement is claimed by prescription where it has been exercised over land for a long period of time - at least 20 years - but no express grant/reservation can be found.

User must prove uninterrupted enjoyment for the 20-year period. No use for 1 year or more is an interruption.

A prescriptive right can only be created between two freeholders.

As a right - the right must have been used without force, without secrecy, without permission.

Question 9

What are the 4 essential characteristics of an easement set out in Re Ellenborough Park?

Answer 9

1. There must be a dominant and servient tenement.
2. The right must have some direct beneficial impact on the dominant tenement. Must be a benefit for the land itself (not just the landowner).
3. There must be diversity of ownership.
4. The right must be capable of forming the subject matter of a deed.

Question 10

What are the 3 disqualifying factors?

Answer 10

Presence of any one of these factors will prevent the right from being an easement:
1. The exercise of the right must not amount to exclusive possession of the servient tenement;
2. The exercise of the right must not involve additional, unavoidable expenditure by the servient owner;
3. The exercise of the right must not depend on permission being given by the servient owner.

Question 11

What are the formalities for creating an express legal easement?

Answer 11

All expressly granted legal easements must be created by deed.
Where servient land is registered, easement must be registered at the Land Registry.
Benefit of easement noted on the Property Register of the dominant land’s title, burden noted in the Charges Register.

Question 12

Inherent equitable easements - easements for an uncertain term - formalities:

Answer 12

No substantive registration.
Must be made in writing, signed by the grantor.

Question 13

Express equitable easements - formalities:

Answer 13

Easements which fall within the definition of legal easements but haven’t been created correctly = estate contracts.

Estate contract:
Must be in writing
Signed by both parties
Include all expressly agreed terms

Question 14

In what circumstances will an easement be implied by necessity?

Answer 14

When its existence is essential in order that any use of the dominant tenement can be made - i.e. land would be completely landlocked without it.

Question 15

In what circumstances will an easement be implied by common intention?

Answer 15

Parties must have had a specific intention that the land was to be used for a certain purpose and the easement is necessary to achieve that purpose. Must be SPECIFIC.

Question 16

When does the rule in Wheeldon v Burrows apply?

Answer 16

Wheeldon v Burrows applied when land is divided for the first time. The newly transferred/leased land becomes the dominant land where:
There is a right that was exercised by the seller/landowner at the time of the sale/lease;
The right enhances the land in some way;
The right has been used reasonably regularly;
The right would be discoverable on a reasonably careful inspection of the land.

Question 17

When does s62 LPA 1925 apply?

Answer 17

There must be a conveyance/transfer deed.
S62 passed the benefit of existing easements to a new owner of the dominant land. It upgrades informal permissions into formal easements where the land is sold/leased.
Will imply a grant of an easement but not reservation of an easement.

Question 18

Who do express legal easements bind?

Answer 18

Express legal easements are automatically binding:
Registered land - substantive registration
Unregistered land - legal interests bind the world. Overriding interest on first registration of servient land.

Question 19

When are implied legal easements binding?

Answer 19

In registered land as overriding interests provided:
Easement is within actual knowledge of the new owner;
Obvious on a reasonably careful inspection;
Exercised within a year before transfer of the servient land.

Unregistered land:
Legal interests bind the world, overriding interest on first registration of land.

Question 20

Express and implied equitable easements must be protected to be enforceable:

Answer 20

In registered land by notice.
In unregistered land by D(iii) Land charge.

A purchaser will not be bound by an unprotected equitable easement. A volunteer will always be bound, whether the easement is protected/not.

Question 21

What are the requirements of s62 LPA 1925, the upgrade effect?

Answer 21

Only applies to grants
Must have been prior diversity of ownership of the 2 pieces of land
Informal permission granted
Followed by a conveyance of the dominant tenement

Only implies legal easements into deeds.